A Case for Compassion
![handle is hein.journals/fedsen21 and id is 176 raw text is: A Case for Compassion
MARY
PRICE*
Vice President and
General Counsel,
Families Against
Mandatory
Minimums
Michael Mahoney died alone in a federal prison hospital on
July 30, 2004. Despite appeals from family members, Fam-
ilies Against Mandatory Minimums (FAMM), and even the
judge who had sentenced him to fifteen years in prison,
prison officials refused to release him to die with his fam-
ily. The story of Michael's conviction, imprisonment, and
final illness and death is an indictment of the criminal jus-
tice system. It is especially an indictment of the federal
Bureau of Prisons (BOP), which we believe routinely fails
in its responsibility under law to consider and recommend
to the courts those prisoners whose cases present extraor-
dinary and compelling reasons for early release.
Michael pled guilty in 1994 to federal armed career
criminal charges and received the mandatory fifteen-year
prison term dictated by 18 U.S.C. 924(e). The serious-
ness of the charges and harshness of his sentence are
belied by the actual circumstances of his case. Michael's
.career in crime consisted in its entirety of three per-
sonal use amount drug sales to the same undercover
informant within a thirty-day period some fourteen years
before, which the state of Texas had charged as three sep-
arate felonies. Following a brief period of incarceration in
Texas, Michael returned to his home state of Tennessee
and opened a small business, a pool hall. He employed
people, paid taxes, and went about his life quietly. Con-
cerned for his safety at closing time, he decided to
purchase a gun for his protection while making night
deposits of the business's cash receipts. Michael later told
the sentencing judge that he had been assured by the
pawnshop owner, who was also an attorney, that his prior
felonies need not be disclosed because they were more
than ten years old. This seemed reasonable to him
because he had been allowed to obtain a state liquor
license after a ten-year waiting period.
Sometime later, Michael's gun was stolen. Concerned
that it might be used to commit a crime, he reported the
theft to authorities. He was arrested when he arranged to
purchase a gun to replace the one stolen.
The decision by federal prosecutors to count the three
x98o drug sales as separate convictions would make a pro-
found difference in Michael's sentence in 1994. It meant
the difference between a five-year and a fifteen-year
mandatory minimum. The fact that the mandatory mini-
Federal Sentencing Reporter, Vol. 21, No. 3, PP. 170-73, ISSN 1053-9867 electronic ISSN 1533-8363
©2oo9 Vera Institute of justice. All rights reserved. Please direct requests for permission to photocopy
or reproduce article content through the University of California Press's Rights and Permissions website,
http://www.ucpressjournals.com/reprintnfo.asp. DOI: io.i525/fsr.2009.213.17o.
FEDERAL SENTENCING REPORTER VOL. 21, NO. 3 FEBRUARY 2009
mum tied the judge's hands also had a huge impact. Had
Michael been sentenced under the Federal Sentencing
Guidelines as a simple felon in possession of a firearm, a
federal offense, his Guideline range would have been fifty-
one to sixty-three months. Instead, he received a sentence
intended for hardened career criminals-recidivists whose
repeated use of firearms may warrant a stiffer sentence.
Michael was no career criminal. He made one mistake in
1984.
Judge James D. Todd struggled with the fifteen-year
sentence the law required. He continued the sentencing
hearing to research the issue on his own, saying:
I am not going to impose such a sentence without giv-
ing myself an opportunity to look at it some more and
try to find a way around it. Because it seems to me this
sentence is just completely out of proportion to the
defendants conduct in this case. Now I understand the
statute was intended to stop people who have had
previous drug convictions from possessing a firearm.
I think that's a worthwhile purpose, and I send crim-
inals away regularly for violating that, and I have no
hesitation in doing that .... I'm not going to impose
a sentence of fifteen years without having an oppor-
tunity to see if there's some way around it because it
just seems to me this is not what Congress had in
mind.
In the end, though, Judge Todd concluded that he had
no choice but to sentence Michael to the mandatory mini-
mum term, but not without expressing his feelings about
this outcome:
I dorft think that this is the kind of case that Congress
had in mind, where the prior convictions were some
fifteen years ago and you've had a relatively clean
record since that time.... [That said] the court has no
authority to depart downward .... So it doesrft mat-
ter how compelling your circumstances may be, it
doesn't matter how long ago those convictions were,
and it doesn't matter how good your record has been
since those prior convictions. i8 U.S.C. 924(e)
requires in your case that you receive a sentence of fif-
teen years. So the court has no alternative but to
impose that sentence.](ViewImageLocal?handle=hein.journals/fedsen21&div=35&collection=journals&method=preview&ext=.png&size=3)
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A Case for Compassion
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