Criminal Defense: Perpetuating A Congressionally Recognized Injustice

The broader question is whether federal trial courts will be required, for roughly the next five years, to perpetuate a congressionally recognized injustice. It is disturbing enough when courts, whose primary task is to do justice, become themselves the instruments of injustice, as in the history of our nation it must be acknowledged they sometimes have. But this discomfort reaches its zenith when the injustice has been identified and formally remedied by Congress itself. For a trial judge, the distastefulness of being forced to continue imposing a rejected penalty becomes unendurable in light of the fact that Congress acted partly because the injustice is racially skewed and, as everyone now agrees, will fall disproportionately upon Black defendants such as Mr. Watts.

Nope, it's not a letter to the editor, it's Federal District Judge Michael Ponsor's memorandum regarding the application of the Fair Sentencing Act of 2010 to the case of Antoine Watts. It's not the first time Judge Ponsor has been to the dance on this sentencing issue.

The paragraph quoted above is not a footnote, not buried at the end of the 50 page order, it's the second paragraph.

Antoine Watts is charged with possessing with intent to distribute five grams or more of crack cocaine. The judge in his memo questions whether the court will be compelled to impose a minimum mandatory sentence of at least five years on him, or will have the discretion to impose a lower sentence as permitted by the recently enacted Fair Sentencing Act of 2010.

Now you may be wondering, how did legislation called the "Fair Sentencing Act" get through Congress? I guess the racial disparity issue of sentencing crack offenders (mostly black) to much higher sentences than those with powder cocaine (white people) resonated with enough "tough on crime" congressmen.

Judge Ponser doesn't get past page 3 before dismissing the Government's argument:

The government’s position here is that this court, and all federal trial courts in this country, must robotically continue to impose penalties that all three branches of government -- executive, legislative, and judicial -- and all elements of our political system -- Republicans and Democrats from the most conservative to the most liberal -- have now formally condemned as racially tainted and have explicitly rejected as not only unjust but mistaken from the outset. For the reasons set forth below, the affront to manifest and undisputed congressional intent advocated by the government here is not required by law.

You would think the defense lawyer's motion got mixed up in the copy machine when you get to this passage:

It is a painful, and often noted, irony that the United States of America -- the land of the free and the home of the brave -- leads the world in the rate of incarcerating its citizens. Some seven percent of the population, or 2.3 million people, are currently housed, at vast expense, in the nation’s prisons and jails.5 Approximately 210,000 inmates are in federal prisons; of these federal prisoners,100,000 were convicted of drug crimes.

Then we get to the narrow issue:

The question before the court is very simple: does the law require this court to sentence Antoine Watts according to a statute found by Congress to be both unjust and racist?

There's a question.

Here's the memo. It's worth the 50 page read.

Brian Tannebaum is a criminal defense lawyer in Miami, Florida practicing in state and federal court, and the author of The Truth About Hiring A Criminal Defense Lawyer.