“Mandatory Sentencing Guidelines,” I think that’s an oxymoron in and of itself. A guideline can’t be mandatory and still be a guideline. Nevertheless, that’s what it’s called. It means that a judge has to sentence according to a specific formula and it means the sentence is really determined by the charges and the information provided by the prosecution so that the discretion that a judge has is significantly and substantially reduced. I felt that and continue to feel that I was appointed under Article III of the US Constitution to be Charlie McCarthy for somebody else’s Edward Bergen, that I was appointed to exercise my judgment in accordance with law. And when you eliminate the ability to live with a sentence to impose, you are turned into a bureaucrat. That’s the reason that I don’t do it.

Q: So this took power away from judges and gave it to prosectors?

Oh yes, absolutely it did. It also created a committee in Washington, the grid system, so that they come out with a given sentence and the judge can go above or below the guideline for certain stated reasons. For example- one of the reasons you can go above the guidelines is because the, only the government, not the defense, has the ability to authorize it, saying, well, “he cooperated.” So it has turned our system into an informant-based system rather than an investigative-based system. It means informing on other people.

Q: Is that a problem?

Let me put it this way, if you are trying to deal with the individual in front of you, you are searching for some semblence of dignity and integrity in the person that you can build on. At the same time, you are looking at their anti-social behavior and see what kind of sentence you can fashion to get rid of that anti-social behavior so that when they are through with that sentence they are not going to go back to that lifestyle, and the same kind of crime that they did before. If, you turn the person into an informant- what have you done to their integrity and dignity? Where they say, “I have betrayed someone else,” they have put someone else in jeopardy of greater harm in order to make life easier for themselves. Does it help law enforcement? Well, you go out and you got one guy and you say- “you inform on two and we’ll give you a break,” so you catch two more. So in that sense, it makes life a lot easier for the law enforcement because they know who to go look for.

85 of every 100 prisoners come back

On a superficial level it helps law enforcement, but on the other hand, rather than law enforcement, let’s say we’re talking about owning a shoe store. You go into business, borrow some money, sign a lease, you have all these things that business men have, you have to have clerks and an accountant to be in business… How long would you survive in that business if 85 of every 100 pairs of shoes were returned and you had to refund the money? You’d go bankrupt. You can’t be in a business with that kind of return rate. That’s called recidivism and you have to look and see what the recidivist rate is- the return on sales. Eighty-five out of every 100 prisoners come back.