This is the text of a letter sent to the ABA Commission on sentencing reform, which issued a report in 2004 calling for comprehensive reform of criminal sentencing laws, federally and in the states.
 
November 3, 2003
 
Tom Smith, Executive Director
ABA Criminal Justice Section
 
Dear Mr. Smith:
 
I would like to thank you and the American Bar Association, Justice Kennedy Commission, for holding hearings on the impact of mandatory sentencing laws. I respectfully submit this written statement for the consideration of the Commission.
 
First, let me offer some background about myself: For 10 years I worked as a lawyer for an Inspector General's office in a large federal agency. While I was not responsible for criminal cases, I became familiar with criminal and civil enforcement strategies and practices. In 1997, I began to be affected personally by federal criminal law enforcement when my friends -- parents of two children -- were arrested and subjected to proceedings which resulted in their imprisonment for 17 and 21 years respectively. I am now married to one of these friends, who is now incarcerated in Virginia, with a release date in 2012. (I will not go into the substance of this case, except to say that I believe it was unfairly pursued, unfairly tried and unfairly disposed.) Between 1999 and late 2002, I made regular visits to Allenwood-Medium and I now visit Petersburg-Low. I have become acquainted with partners, wives, mothers, children, siblings and friends of federal prisoners.
 
In thinking of how to present to the Commission my many complicated and emotionally-influenced thoughts, I return in my mind to the hours and hours we spent in Allenwood's visiting room, and one young inmate in particular who was there regularly. He was in his 20s, but seemed just a kid to me. He had a job in the visiting room photographing families, and occasionally he was there as someone receiving visitors instead -- his girlfriend, his mother, his brother. My husband knew and associated with him inside. They shared reading materials -- literature and social commentary; he actively participated in a class my husband taught. He was bright and personally engaging. He greeted me cheerfully and respectfully, and introduced me to his family. He was among the first to offer good wishes when my husband and I got married.
 
This young guy was starting out on a 40 year sentence. Forty years. Now, let's say he had done a bad thing; let's say that if I had been his victim, I would have been outraged (though not physically harmed); let's say, even, that his actions might have made his neighbors feel unsafe, had they known about them. Assuming all of this, the sentence is still irrational. In my way of thinking, five years in a federal medium-security prison is a long punishing time. As a member of society, from which he was removed, I don't think 40 years would make me feel 8 times more vindicated than five, or 4 times more vindicated than 10. And I believe many informed people would share this outlook.
 
In 20 years, my husband and I (if we are both still alive) will be living together in freedom, and this man will be about half way through his time. At the end of his sentence, he will rejoin the community at an age when most people are preparing to retire, having been locked up for virtually all of his adult life. Others in his prison cohort will also re-enter after decades in prison. Many of them will have worked for years in prison factories but may never be entitled to the standard benefits of working people at retirement age. I don't know what they will do.  I don't know if they will be recidivists. I can't imagine what will happen to them, honestly, once they have officially paid their debt. No one in charge is thinking much about it, that's clear. I fear that, having expressed our collective anger at them with irrational sentences, society will be angry at them all over again when we see that they are economically and socially displaced out here. The retributive justice will just keep on coming. If that's now the only goal of law enforcement, we are on the right track.
 
Let me now turn to the subject of discretion and community interests. I know how federal law enforcement lawyers and investigators are trained. I know they think of their cases as big games. The only personal stakes for them are their egos. Basically, it's OK to go after people just because you can. The idea is to find a crime that's been committed, charge everything you can think of against everybody you can identify, tally up the harshest possible sanctions (whether imprisonment or monetary penalties and damages), and then wait for the deals to be offered. If you aren't real busy with something else, there's no need to bargain even then. Sure, you might invoke the victims and the public in your rhetoric, but genuine community interests are the farthest things from your mind. I must acknowledge, with regret, that I took part in this game, to an extent, before I realized I needed a career change. I'll add that my former colleagues sit behind nice desks, probably made by prison labor.
 
Why would anyone in public policy ever imagine that prosecutors are going to use charging discretion reasonably when they are consciously trained to do the opposite? Prosecutors are pretty smart. But they are not prepared to think much about the justice in what they do, nor are they generally inclined to care.  If that's an accepted feature of our adversarial system, so be it. But we have to be able to rely on someone to stop the madness.
 
Who in this process is competent to have and use discretion? We know this, don't we? This is core federalism. The discretion must lie in the impartial one, the disinterested one, the one with the lifetime appointment ... the judge.
 
Without mandatory minimum sentences, maybe that kid in Allenwood would still have gotten a very harsh sentence from a tough judge. Without hope of parole, that's bad luck. But it's not the product of a stacked deck in somebody else's game with his life.
 
I thank you sincerely for your inquiry and for considering my comments.
 
Lisa Foley Stand
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