What do you think of mandatory minimum sentencing with regard to marijuana?

JUDGE THELTON HENDERSON

I'm opposed to mandatory minimums, in general, because I think they're unduly harsh. I think that they don't allow the judge the discretion to deal with individual problems. There is a formula that says you've been involved with a certain amount of drugs, for example, ergo you get the mandatory minimum. And then they're very harsh, and I'm opposed to them.

I think to best understand how the mandatory minimum works, you have to understand how the sentencing guidelines themselves work, and it's essentially a two-step process that you have to go through. First, you assess the criminal off the offense level. And the offense level takes into account the amount of money involved, if it's money, embezzlement, or something like that. Or the amount of drugs involved. You sort of add them up and then you take into account the person's criminal history category. Can be anywhere from one up to a number, and they you place that on a matrix or a grid.

And you come up with, when those two things intersect, a sentencing guideline range. Usually, with an eighth-month range. However, when those two elements are sufficiently large, it kicks you over into mandatory minimums. It's that simple, so that at a certain level, the offense level and the criminal history dictate a mandatory minimum of ten years in many cases, or perhaps twenty years in other cases.

INTERVIEWER

For marijuana?

JUDGE THELTON HENDERSON

For marijuana. I had a fairly recent experience of two young men, up in Ureka, which is one of California's popular marijuana growing regions, and they were both in their twenties, and had a marijuana growing operation on a patch of land, and they both came up with a mandatory minimum of ten years.

INTERVIEWER

And how did you feel about that sentence?

JUDGE THELTON HENDERSON

I felt awful. I still remember vividly, here are two young men who look like the kids next door. Not that gets you off going to jail, but I felt awful because they're in the prime of life. I thought the sentence was much too harsh.

I thought, if I had discretion, I would have sentenced them to something much less, because I thought that they made their shot for the big money, they would have made a lot of money on this operation, they got caught. I think they were sufficiently remorseful. I think they could have learned their lesson with something closer to two years, perhaps three years. I don't know.

INTERVIEWER

What do you say to a drug warrior who would say, "They broke the law. They were growing marijuana. We don't want drugs grown in this country. It's not too harsh."

JUDGE THELTON HENDERSON

I'm looking at the two individual young men, and I think it's too harsh in terms if you're trying to save individuals, if you're trying to rehabilitate individuals, I think they were rehabilatable within less than ten years. I think that they were no longer a danger to society.

Had they served a shorter sentence, and I think that's the goal of our criminal system, to rehabilitate, to try to keep people who are a danger to society off the streets. I think all of those things would have been met with a much shorter sentence, and on the subject of whether the people who say, "Well, you need to put them in jail because drugs are a threat." I just have never seen a study, and I've read a lot of them, that have told me that mandatory minimums are reducing the growing of marijuana, or the participation in drug offenses. I have seen no evidence of that.

INTERVIEWER

How do mandatory minimums affect the power of judges?

JUDGE THELTON HENDERSON

I think it's fair to say, most judges I've talked to would agree with me, that the purpose of the sentencing guidelines was to take away discretion from judges. You had a wide range of discretion and I think Congress didn't like the way many judges were exercising that discretion. They simply transplanted the discretion and so that the prosecutors now have the discretion, I think, that the judges formerly had, and it's in this way many cases are shaped--plea bargains.

By the time they get to the judge, a prosecutor has met with counsel, and said "OK, you have this patch of land that you've grown marijuana on, and then there's a greenhouse out there, where you grew some more--the quality stuff. I'll tell you what, we won't charge the greenhouse." So that's enormous discretion that the prosecutor has in shaping the sentence. Again, the sentencing guidelines haven't dis-served their purpose of taking away discretion, they've simply given in my opinion to prosecutors.

INTERVIEWER

And, for the offenders, is there any way to avoid a mandatory minimum sentence?

JUDGE THELTON HENDERSON

You could make departures by substantial cooperation. I just sentenced someone Monday, one of my oldest criminal cases, someone who had been involved in a cocaine operation over in Oakland and faced a very long sentence.

He was dealing in large quantities, but he cooperated with the government, gave evidence, testified at two trials, got convictions of larger players than himself, and the government then recommended a downward departure, which I granted, and so you can get below it by essentially ratting on your friends, as they say in the trade.

INTERVIEWER

There are those who say that this had encouraged the development of huge network of informants.

JUDGE THELTON HENDERSON

I've thought about it. I don't have any particular feeling about it. In fact, I was just talking to someone at lunch today, a former U.S. attorney that I went to lunch with was telling me that many criminal defense lawyers will not represent someone who, at once, did turn state's evidence. They will not do that. And then there are other lawyers, there are defense lawyers who will do it. And I didn't realize that one until I had that lunch.

So, my own personal feeling is I don't have any objection to it. I think that it's human nature to want to get out of a twenty-year minimum sentence and I don't think you have very strong friendships, perhaps, in the drug trade, and so it probably is fairly easy to do it. The bigger deterrent, I think, is not friendship, it's safety. It's very dangerous when you're in a big drug operation to rat on your friends. A lot of people get killed.

INTERVIEWER

What alternatives would you consider to mandatory minimum sentencing? Is there another form of sentencing that you would favor?

JUDGE THELTON HENDERSON

Yes, if I understand the question, I think that a first-time non-violent, have to be a large amount of marijuana to be a mandatory minimum, but still assuming that, I think the only alternative I can think of is to give the court some sort of discretion. To take into account that individual situation. Again, in this case I've mentioned, I would have loved to have had the discretion, and I've been doing this for 17 years, and I think I have some insights into people I'm sentencing.

I'm absolutely convinced that a two- or three-year sentence for these two young men would have deterred them, would have made the point well, and they would have gone on. They both had other skills, they had college training. I think they would have gone on with another phase of their life, and I'm convinced, wouldn't have tried to make their fortune through drugs again.

INTERVIEWER

And to somebody listening to you who might say, "Well, he's soft on marijuana." What would you say?

JUDGE THELTON HENDERSON

I don't think I'm soft on marijuana. In fact, I've said many times, I don't like drug dealers. I grew up in a tough part of L.A. I have relatives, who have drug problems. I've seen the destruction, I know what crack cocaine does. I'm thoroughly opposed to drug dealers. But again, I think they're entitled to an individual look. And there are drug dealers, and there are drug dealers. I have sent many away for as long as I can send them away, and I think they deserve it. Others, I think, are redeemable can be rehabilitated.

INTERVIEWER

You talk, of course, to other federal judges. Is there any kind of consensus on this issue of mandatory minimum?

JUDGE THELTON HENDERSON

Oh, there's a strong consensus. I have never talked to a federal judge who is in favor of the mandatory minimum. I have talked to very few federal judges, who were in favor of the sentencing guidelines themselves. Now, it might be said, well, Henderson's a liberal, and that's who he talks to. But I'm talking to Reagan appointees, Bush appointees, conservative judges, and I think I'm accurately stating the feeling of the federal judiciary.

INTERVIEWER

What can judges do?

JUDGE THELTON HENDERSON

Nothing that I know of. I think when the sentencing guidelines first came in we thought, certainly I thought, and many people that I've talked to thought, that they would phase out after some period of time. They're still around, and I see no indication of them phasing out in the near future. But I'm not aware of anything judges can do, we can't lobby.

We're pretty much handicapped. We can speak out and state our displeasure. And hope that the time will come when Congress will revisit this, but they've been very slow. For example, you may be aware that there were some cases brought on the grounds that the sentencing for crack cocaine was racially unfair, that blacks tended to use crack cocaine and the users of powder cocaine got a different sentence. Much lighter sentence. This was brought out, and presented to the sentencing commission.

After the case went up to the Supreme Court, and very little, I think, has been done, to correct that disparity.

INTERVIEWER

Do you see a real prospect that the future will change things? With regard to marijuana?

JUDGE THELTON HENDERSON

Keep in mind, I have a California, San Franciscan perspective, which is quite liberal. What's the future? I don't know. I think, in long view, that eventually as I understand the medical evidence, the research that they've been doing, that marijuana for medicinal purposes will grow nationwide. These things usually start in California, and that's the foot in the door. And I think once you get that accepted, it seems to me the logical next step is that marijuana itself for non-medicinal purposes, what's wrong with it, seems to be the next question that'll be raised.

INTERVIEWER

Are there any other cases that come to mind, in addition to the two young men you mentioned earlier?

JUDGE THELTON HENDERSON

Yes, there have been a couple of others, and they've been many other mandatory minimums ... the most egregious I could think of is a young fellow, who was part of conspiracy, got $300 for driving a truck that had a lot of drugs on it, was arrested, and was found to be a part of the conspiracy, and therefore responsible for that whole amount.

There's a poor working stiff trying to make a few extra bucks, had to send him jail for ten years. And he wasn't even in the marijuana trade. He was trying to pick up some bucks, but being part of a conspiracy the mandatory minimum kicked in, and again I remember that case quite clearly. And I think a real injustice was made there.

Another injustice in the sentencing guidelines in this whole area is that you can depart downward below that for substantial cooperation with the government. What happens, I've found, in many of these cases, is you get this guy, someone says, "Hey Joe, you want to make 300 bucks?" "Yeah, what do I do." "Well, drive this truck." Now I'm not suggesting that Joe doesn't know what's in the truck. He does, but he thinks he can drive the truck and get the 300 bucks and he's home free.

But, what happens when he talked to the prosecutor, the prosecutor says "OK, now if you depart, I mean if you cooperate, you don't have to serve ten years. Tell us everything you know." "Well, gee, Sammy who hangs out at this bar said he'd give me 300 bucks to drive the truck. Yes. That's all I know." "Well who does Sammy work for?" "I don't know. I see him hang out here." That's all you can tell. You get nothing.

Now, go to the other end of that conspiracy. Go to the top guy, you catch the top guy, he knows the whole operation, he turns in Joe, Bill, Sam, Bob. He may get two years. And he's the kingpin. Because he substantially cooperate. That is a gross injustice, in my mind, that the sentencing guidelines do not take into account.

All the little guys go cause they can't cooperate. They want to, they don't know enough to hand in anybody. So they get the full ten years. There are a lot of problems that I have, and I believe other judges, with this system.

INTERVIEWER

What could cause a marijuana case to go federal, as opposed to being prosecuted on a state level?

JUDGE THELTON HENDERSON

I think that's just local option. I think that it can go either state or federal, and I think in our court there's a local agreement with the prosecutor that certain of the bigger cases will go in federal court. And because sentencing guidelines call for a larger sentence than in state court, they'll bring those cases in federal court. But it could be brought in either place.