Pickering a fight.

The law, lawyers, and the court.
Aug. 11 2003 12:17 PM

Pickering a Fight

Republicans celebrate a judge who's easy on black drug offenders.

If you like farce, the upcoming judicial confirmation hearing for Judge Charles W. Pickering should make for some satisfying C-SPAN. The Mississippi federal judge is the Bush administration's nominee to the 5th Circuit Court of Appeals *. To defend him against charges of racial insensitivity, Republicans are marketing Pickering's record of giving lenient sentences to black drug offenders. It's nice to see conservative lawmakers deferring to a judge's belief that some criminals deserve a second chance. Except these are the same lawmakers who spent their last term chipping away at the power of federal judges to reduce criminal sentences.

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Congress started the ball rolling in April with a bill to keep tabs on judges who give sentencing breaks. Last week, Attorney General John Ashcroft readied his forces to take advantage of the new law. In an internal memo, he instructed U.S. attorneys around the country to report all instances in which judges give sentences lighter than those recommended by the federal sentencing guidelines, setting a lot more of the decisions up for appeal.

Emily Bazelon Emily Bazelon

Emily Bazelon is a Slate senior editor and the Truman Capote Fellow at Yale Law School. She is the author of Sticks and Stones.

If the problem is judges with a soft spot at sentencing, Pickering makes a good target—as his conservative defenders have unwittingly emphasized.

They had to do something. The Democrats started making trouble for the judge when they went after him as a '60s segregationist last year. Spooked by the Walking Ghost of Trent Lott, Republican lawmakers must have privately begged the Bush administration to dump the guy. Publicly, however, they protested that Pickering had worked hard for racial reconciliation in his state and earned the respect of many local African-Americans. Then the Democrats came up with more recent ammunition: Pickering's intensely personal intercession in 1995 on behalf of Daniel Swan, a convicted cross-burner.

The Justice Department prosecuted Swan along with two other men after he got drunk and burned a large wooden cross on the lawn of an interracial couple in his Mississippi hometown. His co-defendants (one had a low IQ, and the other was 17) agreed to plead guilty and got no jail time. Swan refused the prosecutor's offer and went to trial in Pickering's courtroom. He was convicted, and the jury found that he had acted out of racial animus. That meant a five-year mandatory sentence on top of two and a half years for the crime itself. But based on the testimony at trial, Pickering concluded that the cross-burning was the 17-year-old's idea, not Swan's. To the judge, that meant seven years-plus was unfair. Remarkably, Pickering lobbied to reduce Swan's sentence by hounding the prosecutors in the case and complaining to a friend—a top official at the Justice Department. The prosecutors eventually agreed to drop some of the charges against Swan—despite the fact that the jury had already found him guilty of them. Swan ended up spending just 27 months in prison.

Pickering may well have been right that Swan's sentence was unduly harsh. Seven and a half years is a lot of time for a crime that didn't injure anyone. But the image of a judge from Mississippi sticking his neck out for a cross-burner didn't play well in Washington. So, his Republican defenders decided to promote Pickering's broader record of reducing defendants' sentences. They particularly stressed the sentencing breaks he gave several African-Americans charged with drug violations. The judge was moved to reduce one sentence because the defendant "showed himself to be a good father," the man's lawyer wrote in a testimonial handed out by the judge's congressional backers. There's also a statement from a defense lawyer who says the judge went easy on his drug-trafficking client because the man "did not have a high school degree and admitted to drug use since age 8."

The problem with extolling Pickering as an arbiter of mercy is that it's completely at odds with the Republicans' recent stance toward the rest of the judiciary. To begin with, there's the thrashing of Judge James M. Rosenbaum, chief judge of the district court of Minnesota. Rosenbaum testified before the House Judiciary Committee last year against a bill that would have reinstated mandatory sentences of more than 10 years for first-time drug offenders. In response, the Judiciary Committee (led by Wisconsin Republican F. James Sensenbrenner) took the extraordinary step of threatening to subpoena the judge's own records, accusing him of meting out "illegal" sentences. In fact, Rosenbaum had once been reversed by an appeals court for shaving nine months off a sentence, and he'd twice sentenced defendants to 120 months rather than 121 months, the calculation for 10 years in the federal sentencing guidelines. Those prison-time reductions are a lot smaller than the one Pickering gave Swan. But Rosenbaum was a Reagan appointee who had the temerity to speak out against putting drug offenders away for ever-longer periods, so he was singled out for special humiliation.

Even more telling are those changes to sentencing law that Congress passed in April. Called the Feeney Amendment, the legislation gives the U.S. Sentencing Commission, which makes recommendations to Congress, six months to find ways to "substantially reduce" the number of sentences that fall below the ranges set by the federal sentencing guidelines. Congress enacted the guidelines in 1984 to set prison-term ranges for particular crimes. The idea was make the punishment for federal crimes more uniform. But there was room to make exceptions. Judges retained the discretion to reduce (or increase) sentences based on extenuating facts like a defendant's age or family situation.

Now, however, Congress wants to shove judges into line. The judiciary is supposed to quit tempering justice with mercy when that involves deviating from the punishments Congress sets. Which ought to mean that a defendant who's supposed to do seven and a half years for burning a cross has to do his seven and a half years. Until Pickering got in the way, Swan's case was unfolding just as those Republicans who lobbied for the Feeney bill would have wanted: An uncooperative defendant was getting nailed. The next judge who gets blasted for deviating from the sentencing guidelines should point his or her attackers to Pickering's courtroom.

Correction, Aug. 11, 2003: Originally this article stated that Charles Pickering was nominated for the 11th Circuit Court of Appeals. He is in fact the nominee for the 5th Circuit Court of Appeals. (Click here to return to article.)

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