The Power of Futile Speeches

Don't worry about the size of your audience; someone like me might be listening. Minds are more open than you might think, and sometimes even the prosecutor gets it.
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I became a prosecutor in 1995 because I believed in order and justice. I went to Detroit to be a prosecutor because it seemed like a place in desperate need of order, justice, and the talents of expatriates like me who had drifted off to richer, more stable places.

Like most prosecutors, I believed in the rigid federal sentencing guidelines then in place. This included the guidelines in our many crack cocaine cases, which assessed the same penalty for a single gram of crack as it did for 100 grams of powder cocaine.

One of my crack cases involved a teenager named Anthony "Bull" Shepherd, who was caught in an abandoned house with a little over five grams of crack and a gun hidden in a couch. He went to trial and lost, and faced a mandatory ten year sentence -- five for the gun stacked on top of five for the crack -- with no hope of parole.

I crossed the street to the courthouse the afternoon of his sentencing with great certainty. The judge had no discretion.

The case was called, and Judge Anna Diggs Taylor, a tall, elegant woman looked down at me. "Are you asking for the mandatory minimums to be observed?" she asked.

I nodded. "They're mandatory, your honor."

She then turned to my opposing counsel, federal defender Andrew Densemo. "And will you be making your usual futile speech?" she asked him.

He answered in the affirmative, and began a passionate twenty-minute argument against the imposition of the mandatory minimums. He described the way it affected the black community, the failure of the law to stop crack trafficking, the unfairness of locking up this teenager for a longer period than the bank robber Judge Taylor had just sentenced, and the absurdity that crack was punished so much more harshly than powder cocaine, from which crack was made.

When he was done, falling back in his chair next to his client, Judge Taylor turned back to me. "Any response, Mr. Osler?"

I stood to face the court. "It's mandatory, your honor." To my mind, justice reflected the law.

Then, with a resigned sigh, Judge Taylor sent Anthony ("Bull") Shepherd away for ten years in prison.

Over time, though, Andrew Densemo's futile speech wore me down. At first, it was his claim that we weren't solving a problem that worked at me as I lay in bed or drove to work. When I stepped out of my car on the East Side to feel crack vials crunch under my shoe, I knew he was right about that. In time, I knew that it he was right about it all.

I left that office and took a job teaching law at Baylor. My teaching load there was demanding, but I stayed up late at night working on the crack/powder issue. I started by writing academic articles, but that seemed fruitless. I got involved with the ACLU on a suit in a nearby town involving unjust crack investigations, and that felt more right.

After a victory in that case (which was the basis for the film "American Violet"), I signed on for more litigation, writing and filing briefs in several circuits and the Supreme Court on behalf of sentencing experts. One case, Spears v. United States, I took up as lead counsel for the defendant, writing the briefs at my kitchen table in Waco with the help of a student, Dustin Benham.

That case worked. We won a summary ruling from the U.S. Supreme Court, 5-4 in our favor and holding that sentencing courts could "categorically reject" the 100-1 powder/crack ratio. District judges were delighted, as the ruling gave them more discretion.

One of those federal judges, Arthur Tarnow of Detroit, called me the next day. "How did you end up doing that?" he inquired, a little incredulous.

I told him the story of Andrew Densemo's futile speech.

"Have you ever told Andrew about this?" he asked.

I hadn't, but I did that morning. It was his victory, after all. His response was short but (I hope) true. "You just made an old defender very happy," he said.

This nation is sorely in need of people who make futile speeches, ripe with passion and conviction and a bit of hope. If you can be an Andrew Densemo, don't worry about the size of your audience; someone like me might be listening. Minds are more open than you might think, and sometimes even the prosecutor gets it.

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