A Really Good Day

by Ayelet Waldman

  Back when I was a young federal defender, I carried with me a thick book, the Federal Sentencing Guidelines Manual, in which every federal crime was assigned a point value. (It was around six hundred pages and weighed about as much as a brick of cocaine with a street value of twenty-seven grand.) The point value for drug crimes was determined by consulting the “Drug Quantity Table.” The box of methamphetamine carried by my client weighed at least three kilograms, which carried a “Base Offense Level” of 36. The back half of the book contained adjustments for things like “Role in the Offense” and “Acceptance of Responsibility” (pleading guilty). The chapter on criminal history added points for every prior offense. Among the first things I did with every client was to add up the points of his crime and his criminal history, and then flip to the back page of the book, to a table that calculated exactly what sentence he could expect to receive. My client in the methamphetamine case had no criminal history at all, so his Base Offense Level was not adjusted higher for that. Still, because of the sheer quantity of the drugs in the box he had carried, he was subject to a sentence of between 188 and 235 months.

  This systematized approach to sentencing is certainly rational. There should be consistency in sentencing; a defendant’s future should not depend on how the judicial assignment wheel is spun.*3 However, the idea that nothing about my client’s personal situation could make an impact on his sentence was infuriating. Here was a man who was of such limited intelligence that years ago he would have been called mentally retarded. He was set up by a wily, sophisticated informant who had purposely packed the box with enough drugs to trigger the massive penalty. What justice would be served by sentencing my client, who was a danger to no one other than himself, to more than fifteen years in jail?

  Moreover, the Sentencing Guidelines and mandatory minimums have failed to accomplish their stated goals. True, they removed judicial discretion from the federal system, but there has been no reduction in bias. All that’s happened is that the bias of jurists with sufficient experience and, at least theoretically, wisdom to be appointed to the bench, has been replaced with that of prosecutors, who now determine, via their charging documents, what sentence a defendant faces. We have saved the system from the perils of the personalities of individuals appointed by the president and confirmed by the U.S. Senate and turned it over to the personalities of ambitious young lawyers, many of them right out of law school, and many of them perfectly incubated examples of wealth and privilege.

  Things have improved somewhat since I was in practice. In 2005, the Supreme Court, in a case called United States v. Booker, ruled that the guidelines were not mandatory but advisory, and that judges can depart from the calculations if they so choose, though these departures still have to be “reasonable.” The Fair Sentencing Act of 2010 made changes to the mandatory minimum laws that might have allowed the judge in my client’s case to consider factors that could have mitigated his sentence, though the bulk of that law applies to crack cocaine, not methamphetamine. But back when I was taking my client’s case to trial, the judge had no discretion at all. Her sole job after the determination of guilt or innocence was to do some arithmetic and apply the sentence required by the answer.

  We had had an excellent entrapment defense. I had assembled a mountain of evidence against the informant, a vicious and loathsome man with a history of entrapping first-time offenders, none of whom had ever committed crimes before he encouraged them to do so. My client had no criminal record, and was found by the government’s own expert witness to have an IQ of approximately 85, significantly below average. I was confident that I was going to win, so confident that when the assistant U.S. attorney called me the afternoon before trial, and asked me what I would have settled the case for had he initially offered a plea different from the Sentencing Guidelines range, I said, “Nothing more than two phone counts.”

  A phone count is courthouse jargon for the offense of using a communications device in the commission of a crime. The maximum statutory penalty is four years. My client spoke to the informant a number of times over the phone. Those calls were recorded. If he were charged with communication crimes rather than with drug distribution, though the Sentencing Guidelines sentence would still be determined by the quantity of the drugs at issue in the case, the sentence would be capped at four years for each phone count. If my client pled guilty to those two counts, the judge would have no choice but to sentence him to a maximum of eight years instead of the fifteen to nearly twenty he was looking at.

  The AUSA said, “Plead now, tonight, and you can have your two phone counts.”

  I said, “Did I say two? I meant one.”

  “I’ll give you two. Take it or leave it.”

  I faced a terrible dilemma. If I won at trial, my client would not go to prison. If I lost, he’d spend at least fifteen years in jail, and perhaps closer to twenty. Moreover, even if I won, he would still be facing detention and deportation for entering the country illegally. He could even have been prosecuted for that offense. The AUSA was offering my client eight years. After eight years, you have something of a life left to you. Your children are still children. After fifteen or twenty years? What and who remains?

  Today, with the benefit of age and experience, I wish I had refused the deal. But I was young, I was scared, this was Orange County, and my client was an undocumented Mexican immigrant. Juries from notoriously conservative Orange County were not sympathetic to the people they called “illegals.” It was, of course, my client’s decision, but his intellectual capacity was profoundly diminished. He would do whatever I told him to do.

  It was evening by the time I made my decision. The judge had stayed at work late to hear the plea. We stood in the temporary quarters of the Federal District Court, a grim, windowless, modular portable. The judge began the plea colloquy. She asked me if I had represented my client to the best of my ability, if I supported his decision to take the plea, if the law supported the plea. My voice shook as I affirmed each element, and I started to cry. By the end I could barely speak. My client put his arm around my shoulders. Facing eight years in prison, he comforted me.

  Afterward, as I walked through the dark night to the parking lot, a car pulled up next to me. The window glided down. From inside, the judge called my name.

  “There’s something I want you to know,” she said.

  Having just been yelled at by my boss for breaking down in court, I braced myself for more criticism.

  “There are some things,” she said, “that are worth crying about.”

  Her window slid up and she rolled away.

  * * *

  *1  As anyone who’s seen coverage of a Donald Trump rally can attest.

  *2  See http://www.naacp.org/​pages/​criminal-justice-fact-sheet. Another shocking statistic from the NAACP: “African Americans represent 12% of the total population of drug users, but 38% of those arrested for drug offenses, and 59% of those in state prison for a drug offense.”

  *3  In some jurisdictions, including the one in which I practiced, a literal wheel was spun to determine court assignments.

  Day 9

  Normal Day

  Physical Sensations: None.

  Mood: Calm and content.

  Conflict: None.

  Sleep: Decent night’s sleep.

  Work: Productive.

  Pain: Minor.

  My husband comes home today, finally. I’ve been missing him terribly. To pass the time until his plane landed, I went out to his studio to work.

  We live in a house built in 1907 by a Berkeley physician who practiced in a miniature consulting room on the first floor. My husband renovated a derelict shed in the yard as his idiosyncratic studio, with a desk tucked into a dark, windowless nook, the light blocked by a tall bookcase. For a while, I worked in Dr. Schaeffer’s former office, my desk abutting the hand-washing sink, my ink cartridges and red pencils in the long instrument drawers. The room was dark; its windows were hidden beneath eaves. Wainscoting, st
ained nearly black, crawled up the walls. A heavy bookshelf ran the entire circumference of the ceiling, a leather strap keeping the books in place. Very cool. I hated it.

  From the moment I moved into that office, I loathed the gloom, the dark wood, the heavy window shades, the decrepit, original, Victorian-style light fixtures. I couldn’t bear to work in there, but neither could I bring myself to spend money renovating the space. I had sold my first book, and two more in the same mystery series; I taught a seminar every year at the law school and did consulting work; but even so I earned a fraction of what I had as an attorney. Though I never articulated the feeling, or even really recognized it, I didn’t believe that the approximation of a career I had cobbled together justified the expense of a renovation.

  Then my husband began traveling more for work, and the business of his business, which I had always handled in order to feel I was participating in the economic life of our family beyond the pittance I earned, became too much for me to manage on my own. He hired a part-time assistant to help book his travel, deal with his correspondence, and do all the things that were taking up the hours of my day that I was supposed to spend writing. I happily turned Dr. Schaeffer’s dreary consulting room over to the assistant, and wandered with my laptop out to cafés, to work surrounded by people and pastry—an ideal environment, I insisted, for an extrovert with an addiction to sugar.

  This lasted until my wrists and elbows started to ache. I needed a more ergonomic arrangement than Starbucks could provide. My husband invited me to set up a desk in a corner of his studio in the backyard. This system, though not ideal, worked for years. He keeps vampire’s hours, sitting down to work at around eleven at night and working until dawn burns out his eyeballs and sets his heart aflame. I work in the mornings, once the kids leave for school. On the rare occasions when we were both in the studio at the same time, we enjoyed one another’s company. We sat back-to-back, each listening to the other clicking away on the keys. My husband claimed he could tell from the tempo of my tapping whether I was working or surfing the Internet, and thus he kept me disciplined.

  But something about his space bothered me, too. My desk faced a wall, something my husband enjoys but I despise. I could roll my chair back to look out the window, but still I felt claustrophobic. I am, it seems, a poor workman, and I blamed my tools for my creative frustrations. After a while, I just stopped going out to the studio to work.

  The couch that my husband bought recently to make me more comfortable has only made matters worse. His workstation, now in the middle of the room to make way for the couch, takes up all the available floor space. Then there is a matter of the stuff: the obsolete audio equipment, the mid-century radios, the reel-to-reels, the three or four or eleven eight-track players, the turntables, speakers, tuners, and amps. And let’s not forget the dolls, models, and figurines. The studio is adrift in bits and oddments that lend it a distinctive personality. That personality, a charming and delightful one, is my husband’s. Aside from a few photos of the children, a row of books on the bottom of one of the bookcases, and a bulletin board on which I can tack up notes and images for the project I am working on, there is nothing of mine in the studio. Though he’s welcomed me in, I feel like a girlfriend who’s been given a drawer in a bachelor pad bathroom.

  Today I had, as ever, a hard time getting comfortable enough in the studio to focus. I lay on the couch, my feet up on a pillow. Unsurprisingly, I dozed off.

  When I woke, I gazed at the furnishings in the office, so charmingly expressive of my husband’s iconoclastic personality. Then I looked around my little corner with its sad, few things. I leapt up, ran out to the storage shed, and found an empty cardboard box. I shoved all of my things into the cardboard box, tossed the box into the back of the shed, and surveyed the space. Without my few objects trying to assert a partial dominion, the studio felt like it belonged entirely to my husband. It felt right.

  I sat down on the couch and happily got to work, my mood profoundly altered. I don’t need to share my husband’s studio. I can work anywhere. On a couch in the corner of the room, at a table in a café, in the library. I am nimble and free from the constraints of needing to have a room of my own. According to her nephew who penned a biography, Jane Austen didn’t require an elaborate, secluded space: “She had no separate study to retire to, and most of the work must have been done in the general sitting-room, subject to all kinds of casual interruptions.” If Pride and Prejudice could be produced under such circumstances, only a pretentious fool with an overly precious sense of her own importance would demand a place of her own, free of vintage eight-track players, in which to write.

  Day 10

  Microdose Day

  Physical Sensations: Weirdly conscious that one of my eyes sees better than the other.

  Mood: Wonderful. Happy. Content. Another really good day.

  Conflict: None.

  Sleep: Seven hours.

  Work: Wonderfully productive. I see why some people microdose as a substitute for Adderall.

  Pain: Much less.

  It’s surprisingly difficult to squeeze precisely two drops of liquid into one’s own mouth. I have to do it in the mirror, and even so there’s a certain fraught quality to the experience, as I am terrified of accidentally ingesting too much. I must have looked frazzled when I came into the house this morning, because one of my kids gave me a suspicious look.

  “What are you doing?” he said. “Where were you?”

  “Um, just, you know,” I mumbled, fishing for time, “taking a walk.”

  “Why?”

  “It’s supposed to, like, improve my mood or something.” I winced. Why was I sounding like a fourteen-year-old whose mother notices her red eyes (“I was, like, riding my bike behind a bus or something”)?*1

  “Good,” he said. “Walk longer.” Ordinarily, that’s just the kind of sass that might put a damper on my mood, but not today, Satan!

  “Very funny,” I said. “Anyway, I don’t think it works like that. More isn’t necessarily more. In fact, in this case less is more.”

  But by then he had already lost interest and wandered into the kitchen in search of breakfast.

  It feels a little uncomfortable to be keeping this experiment a secret from my kids. From the very first time our kids asked about drugs, while listening to the radio (“Dad, when he says he gets ‘high with a little help from his friends,’ he doesn’t mean high like on drugs, does he?”), my husband and I have tried to be forthright. (“Yes, he means high on drugs.”) We talk about which drugs have a high potential for abuse and injury, and how to avoid those perils, and we also talk about which drugs are relatively safer. We try to be very clear about the risks and rewards of drug use.

  All of this frank talk inevitably invites questions about our own drug use. My husband and I have always operated on the principle that, though we don’t owe our children an answer to every one of their questions, when we do choose to say something, we owe them the truth. If the kids ask us if we’ve done a certain drug and we don’t feel that they’re old enough to understand the answer or even if we just prefer not to say, we’ll tell them that. Otherwise, we grit our teeth and fess up. We never lie.

  I’m surprised, frankly, that so many parents do. Or perhaps it’s not lying. Perhaps it’s collective amnesia. A number of years ago, we were dropping off our kids at sleep-away camp and bumped into an old college friend of mine. His son is older than my kids, and was already applying to college. I asked if his son was looking at Wesleyan, our alma mater. God forbid, my old friend told me. The school has such an intense drug culture!

  I laughed. It was so clearly a joke. Wesleyan might be notorious for it, but all schools have drug cultures, including the Ivy League institution his child ended up attending. I know of at least one person whose child came home from Harvard with a heroin addiction. True, my old college friend was particularly sensitive because he was in law enforcement, but hadn’t the two of us been at the same parties? I was not muc
h of a drug user, so my mind was not so addled that I forgot who was there. (Hint: he was there!) As I recall, he imbibed a lot more freely than I did. Maybe that’s why he couldn’t remember.

  That was hardly the first moment of parental hypocrisy or convenient amnesia around drugs I have encountered. Many Gen X and Y parents, no matter how little their joint-rolling expertise harmed their careers and personal prospects, are racked with anxiety when it comes to their children and drugs. How many parent meetings have I sat through, listening to earnest educators explain how we can best help our children stand up to “peer pressure”? As if all our children are weak-willed moral midgets, unable to resist the drug-pushing Svengalis of the eighth grade. Every once in a while, someone will have the temerity to wonder if a few kids might be smoking pot not because they’re bullied into submission, but because they think it’s fun. That person will usually be roundly shouted down. That person is usually my husband or me.