[Congressional Record Volume 140, Number 2 (Wednesday, January 26, 1994)]
[Senate]
[Page S]
From the Congressional Record Online through the Government Printing Office [www.gpo.gov]


[Congressional Record: January 26, 1994]
From the Congressional Record Online via GPO Access [wais.access.gpo.gov]

 
             ``SENTENCING OPINION'' BY HON. ROBERT W. SWEET

 Mr. SIMON. Mr. President, we make grand speeches about 
mandatory minimums, and it sounds like we're being tough on crime.
  We not only need to be tough on crime, we need to be smart on crime, 
and we are not being smart on crime.
  Federal judges are virtually unanimous in opposing the mandatory 
minimums that are now a part of the Federal statutes.
  The statistics certainly ought to indicate to us that we would be 
wise to leave these decisions in the hands of the Federal judiciary 
rather than imposing sentences when we do not know the circumstances.
  I recently received a letter from Judge Robert W. Sweet, District 
Judge of the United States District Court in New York City.
  He comments on a case before him. It is his sentencing opinion and 
does not go into detail, and I do not know the detail, but someone was 
sentenced to life in prison because of the importation and distribution 
of more than one kilogram of heroin in the United States.
  I ask to insert Judge Sweet's thoughtful comments into the Record at 
this point.

                           Sentencing Opinion

                          (By Robert W. Sweet)

       On November 30, 1993, the defendant Kwok Ching Yu does not 
     face me for sentence but rather the unseen Members of 
     Congress. This sentence raises serious ethical problems for 
     the sentencing judge, and in my view for Congress, and our 
     society. Under the mandated sentence imposed by Congress by 
     the passage of 21 U.S.C. Sec. 848, this first offender, 42 
     years old, must be sentenced--as a matter of law--to life 
     imprisonment. This is a decree imposed arbitrarily without 
     any knowledge about Kwok Ching Yu or any consideration of his 
     circumstances other than the commission of the acts which 
     Congress has defined as violations of the drug laws resulting 
     from the importation of heroin into the United States.
       The rigidity of arbitrary mandatory minimum sentencing 
     laws, in which the sentencing judge has no authority, has 
     caused at least one judge, the Honorable J. Lawrence Irving 
     of the United States District Court of the Southern District 
     of California, to resign his commission. See ``Criticizing 
     Sentencing Rules, U.S. Judge Resigns,'' N.Y. Times, September 
     30, 1990, at 22; Gary T. Lowenthal, ``Mandatory Sentencing 
     Laws: Undermining the Effectiveness of Determinate Sentencing 
     Reform,'' 81 Calif. L. Rev. 61, 73 n.51 (1993). Perhaps he 
     considered, as I now do, the applicability of the Nuremberg 
     principles of personal responsibility to this arbitrary and 
     ministerial act dictated by Congress.
       The Supreme Court has held this procedure and such 
     sentences constitutional, see, e.g., Harmelin v. Michigan, 
     111 S. Ct. 2680 (1991), and I am bound by my oath to comply 
     with that holding. Were it otherwise, I would conclude that 
     the imposition of a life sentence without the consideration 
     of the individual does not constitute due process.
       My only options in the face of the statute and the present 
     state of the law are to follow Judge Irving's example and to 
     resign to protest a process which I believe to be 
     fundamentally flawed, or to execute a Congressional mandate 
     without further consideration or authority. With serious 
     misgivings but because the issue of the propriety of 
     mandatory minimum sentences is now pending before Congress, I 
     shall sentence the defendant to life imprisonment and forward 
     these sentencing minutes and his probation report to the 
     members of the Judiciary Committees of the House and Senate.
       Having presided over the first trial in which the jurors 
     could not reach a unanimous verdict and the second trial in 
     which his guilt was established to the jury's satisfaction, 
     and having read the complete and thorough probation report, I 
     have knowledge about the history and offense of Kwok Ching Yu 
     that I may not employ in connection with his sentence. That 
     is not to say that I would necessarily impose a different 
     sentence, but it is evident that this sentence is harsh for a 
     first offender.
       Congress has stripped me and my brothers and sisters of any 
     power to act in this situation, and 92% of us have urged the 
     reconsideration of the mandatory nature of these sentences. 
     See ``Judges Oppose Mandatory Minimums,'' The Third Branch, 
     Nov. 11, 1993, at 1 (reporting results of survey of federal 
     judges conducted by Representative Don Edwards of 
     California). Notwithstanding, Congress has to date concluded 
     that arbitrary sentences, which they require to be imposed 
     without consideration of the individual, best serve justice 
     and society.
       This situation brings to mind the observation of de 
     Tocqueville, quoted by W.H. Auden & Louis Kronenberger in The 
     Viking Book of Aphorisms, 209 (1962):
       ``A revolt of the judiciary is more dangerous to a 
     government than any other, even a military revolt. Now and 
     then it uses the military to suppress disorder, but it 
     defends itself every day by means of the courts. To render a 
     people obedient and keep them so, savage laws inefficiently 
     enforced are less effective than mild laws, enforced by an 
     efficient administration regularly, automatically, as it 
     were, every day and on all alike.''
       While it will not serve this defendant, it is my profound 
     plea which echoes that of the Federal Judges' Association 
     that these provisions governing mandatory minimum sentences 
     be amended to permit some consideration of individual 
     defendants, a consideration to which I believe every 
     defendant is entitled.\1\
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     \1\While not relevant to ethical concerns, it is worth noting 
     that Kwok Ching Yu's probation report indicates that the most 
     recent advisory from the Administrative Office of the U.S. 
     Courts suggests that the monthly costs of Mr. Yu's 
     imprisonment will be $1,492.00. Since Mr. Yu has a life 
     expectancy of 32.7 years, see 1993 World Almanac at 940, the 
     cost to the taxpayers of this sentence will be in excess of 
     $585,460.00.
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       Because Kwok Ching Yu was found guilty upon a retrial of 
     Counts One, Two, Five, Six, Seven, Eight and Nine of 
     conspiracy to import into the United States and to distribute 
     more than one kilogram of heroin in violation of 21 U.S.C. 
     Sec. Sec. 846 and 963 (Counts One and Two); of being a 
     principal administrator of a continuing criminal enterprise 
     in violation of 21 U.S.C. Sec. Sec. 848 (a) & (b) (Count 
     Five); of importing heroin into the United States in 
     violation of 21 U.S.C. Sec. Sec. 812, 952, 960(a)(1), 
     960(b)(1)(A) and 18 U.S.C. Sec. 2 (Counts Six and Eight); and 
     of possession of heroin with intent to distribute in 
     violation of 21 U.S.C. Sec. Sec. 812, 841(a)(1), 841(b)(1)(A) 
     and 18 U.S.C. Sec. 2; and because the conspiracy of which he 
     was convicted involved 231 kilograms of heroin, a sentence of 
     life imprisonment must be imposed, together with 5 years' 
     supervised release. No fine will be imposed, but pursuant to 
     18 U.S.C. Sec. 3013 a special assessment of $350.00 is 
     mandatory.
       The Presentence Report and Addendum prepared by the U.S. 
     Probation Office graded his offense conduct under the United 
     States Sentencing Guidelines (the ``Guidelines'') at a total 
     offense level of 46 and assigned him a Guidelines criminal 
     history category of I. The Guidelines Range for this offense 
     level is also life imprisonment. The defendant objects to the 
     Probation Department's augmentation of his offense level by 
     two points for obstruction of justice. Without this 
     augmentation, however, his offense level is 44, and the 
     Guidelines Range for an offense level of 44 and a criminal 
     history category of I is also life. I conclude, however, that 
     the letters at issue do not constitute an obstruction of 
     justice though that determination does not affect the result 
     here.
       Through counsel I have been asked to consider the effect of 
     United States v. Ward, 814 F. Supp. 23 (E.D. Va. 1993) in 
     determining his sentence. In Ward, although the defendant's 
     total offense level of 45 mandated a life sentence, the court 
     departed downward because the defendant was 49 years old with 
     no juvenile or adult criminal convictions. However, the drug 
     offenses committed by the defendant in Ward, involving the 
     distribution of ``crack'' cocaine and cocaine, did not carry 
     a statutory minimum of life imprisonment. I therefore have no 
     authority to follow Ward.
       Despite my concerns regarding the efficacy, justice, and 
     constitutionality of mandatory minimum sentences, I am bound 
     to impose the sentence that Congress has imposed and that I 
     have just described.

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