Judge Edward Prado Nominated for Fifth Circuit Seat

President Bush has nominated Edward C. Prado, a U.S. District Court Judge in the Western District of Texas, for a seat on the Fifth Circuit Court of Appeals.

We are pleased. Judge Prado opposes mandatory minimum sentences. In 1996, on behalf of the National Association of Criminal Defense Lawyers (NACDL), I invited Judge Prado to Washington, DC, to serve on a panel of experts opposing mandatory minimum sentences, as part of our then-annual Legislative Fly-in. The panel was entitled, Sentencing: The Miscarriage of Mandatory Minimums. Other members of the panel included U.S. District Court Judge Terry Hatter (C.D.C.A.) and Julie Stewart of Families Against Mandatory Minimums (FAMM).

Judge Prado was appointed to the federal bench by President Reagan in 1984. Prior to that he had been both a prosecutor and a public defender and a state court judge.

Here are Judge Prado's remarks:

"Judge Hatter and I are not alone. The judges were surveyed several years back and asked for their opinions. This was back in '92, so it's a little old, but it gives you an idea. Here's what district judges thought about mandatory sentences, and I'm just going to summarize. (Among the questions was what is your opinion about) "Maintain(ing) the current system of mandatory sentences?" About 70 percent were in opposition to retaining the system. (Another question was,) "Change the current sentencing rules to increase the discretion of the judge?" 85 Percent of us thought we should have more discretion. "Retain from enacting more legislation mandating minimum sentences?" 88 Percent of district judges, (the sentencing judges) said no more minimum mandatory sentences. "Repeal most, or all, mandatory minimum sentences?" 80 Percent of us said we should repeal them.

So the vast majority of district judges, (and there was a survey taken also of appellate judges and magistrates, and it pretty much was close to this), 75 - 80 percent of us, don't like them, don't want any more, and want them to be done away with. They cost millions of dollars. You have to house these people an extra amount of time. They have a big impact on the low-level, first offenders, which I don't think was the purpose of the mandatory sentences. But you've got a lot of first-time offenders that are getting stuck with these things. They're supposed to target the violent offenders and they don't. They're bringing a lot of these people that are minimally involved.

The U.S. Sentencing Guidelines are a form of mandatory sentences, but they offer more flexibility. We thought they were bad when they came into effect, but now, when you compare them to mandatory sentences, well, maybe they're not so bad. You can at least attempt to individualize the sentence. You can take into effect certain factors, mitigating circumstances, and so there is some flexibility in the guidelines that the mandatory sentences don't provide us.

It's estimated that close to 90 percent of the people that got convicted with a mandatory sentence were drug offenders. I'll give you a quick run-down of people that got mandatory sentences and this was back in '92, so my figures are a little off, but of those that got mandatory sentences, like I said, almost 90 Percent of them were drug offenders. But 85 percent did not play an aggravating role. 49 Percent had no prior criminal history. 77 Percent had no weapon involved, and it was found in the courts in 81 Percent of them that they did not have the ability to pay a fine. That doesn't sound like a career violent offender to me, yet those are the people that are getting the mandatory sentences. You're not getting the kingpins, you're getting some of these low-level people.

Furthermore, mandatory minimum sentences are not being used uniformly. Studies show that 46 percent of those people, when you look at the facts of the crime, 46 percent that could have been sentenced under the mandatory sentence were not. So you only have about half of those that could be getting mandatory sentences that are getting them. The prosecutors are using their discretion in deciding who gets a mandatory sentence and who doesn't. It's no longer up to the judge to decide. But (rather,) that prosecutor is making that decision, which is not right. That's what the judge is there for.

It was estimated if all those in 1990 that got mandatory sentences would not have gotten mandatory sentences (would have gotten a regular sentence) we could have saved over $ 100 million that it cost us. It cost us about $ 21,000 a year to house someone. So, if you take those figures, someone put it together and came up with the fact that we would have saved over $ 100 million if we wouldn't have sentenced people to mandatory sentences back in 1990.

And these mandatory sentences do not serve a deterrent effect. Certainly (they are not) preventing people from going out and committing crimes. The best factor that can be used, to decide who is going to be dangerous and who might come back into the system is the prior criminal history. Prior criminal history is not something we take into account under these mandatories. It's the amount of drugs. It should be the prior criminal history. The amount of drugs doesn't tell you who is going to be in trouble in the future.

Crime has not gone down. Crime is just as bad as it was before. Mandatory minimums are applied inconsistently. The prosecutor decides who gets them. And in about half the cases they aren't applied.

You should invite your representative to lunch or dinner, build a relationship with your individual representative. Don't wait until you're desperate for something. Build a rapport, so that when you do need something, you can pick up the phone and call.

Visit them back home, invite them to dinner, invite them to lunch, two or three of you get together and just kind of talk to him about what's going on and about your concerns.

"(Source: 20 Champion 16 (July, 1996); The National Association of Criminal Defense Lawyers,The Champion, July, 1996. Available on Lexis, "Bar Journals" database.

(Thanks to Howard Bashman of How Appealing for alerting us to the news of Judge Prado's nomination.)

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