Obama Nominates Fowlkes for Vacancy

By Bill Dries

The White House nomination of Criminal Court Judge John Fowlkes to be a U.S. District Court judge would return Fowlkes to the building where he once worked as a federal prosecutor.


President Barack Obama forwarded his nomination of Fowlkes to the U.S. Senate last week for confirmation. Fowlkes would fill the vacancy created by the recent elevation of Judge Bernice Donald to the U.S. Sixth Circuit Court of Appeals, the federal appeals court based in Cincinnati that includes the three federal district courts in Tennessee.

Fowlkes was recommended to the Democratic White House for the position by U.S. Rep. Steve Cohen of Memphis, the ranking Democrat in the state’s delegation to Washington.

“Judge Fowlkes is highly intelligent, well respected and admired throughout Memphis and Shelby County for his commitment to the law,” Cohen said in a written statement.

Fowlkes has also been consistent as public defender, state prosecutor, federal prosecutor and state judge that the criminal justice system should be about more than repeatedly locking up the tide of people coming through the criminal justice system on a daily basis.

“It’s a tidal wave coming through the system everyday,” Fowlkes said in 2008, shortly after he was appointed judge in Division 7 of Shelby County Criminal Court by then-Gov. Phil Bredesen.

He was also speaking of the federal criminal justice system, which is linked to what happens in state court by initiatives like Operation Triggerlock. Triggerlock is the effort by federal prosecutors to add prison time for chronic offenders who are caught with guns after their initial convictions. Fowlkes was among the first federal prosecutors to work with state prosecutors on Triggerlock cases.

“Our federal system can’t handle them,” he said. “And so the ones who aren’t as bad – they give them an option. Come over here and face trial and face 12 years in prison … or you can go over to state and agree to plead guilty and get four or five years, six years.”

Many take the state court route, which includes parole, something every judge at every sentencing hearing in Memphis federal court tells a defendant before them does not exist in the federal system.

Fowlkes has expressed some frustration with the ease with which some defendants take plea deals.

“I’ll say, ‘Don’t you understand? It never goes away,’” he recounted. “We aren’t at the tipping point – the mark here in Memphis yet. The criminals I’ve come into contact with as a prosecutor and also as a judge – they are more afraid of what’s out on the street than they are of long sentences.”

As chief administrative officer to A C Wharton Jr. when Wharton was Shelby County mayor, Fowlkes worked on programs aimed at intervening before or shortly after a defendant talked with his or her attorney about the sentencing choice after a guilty plea in both systems.

Wharton is the former Shelby County public defender. Fowlkes began his legal career as an assistant public defender in the same office before becoming an assistant district attorney general.

Together, Wharton and Fowlkes advocated for programs that offered non-violent offenders with a realistic chance of turning their lives around. The programs were honest about the difficulty of making a break from a past that might include a lengthy juvenile record before the first offense as an adult.

Shortly after he became a judge, Fowlkes returned to the Shelby County Commission seeking more funding for a county program aimed at helping convicts adjust to life outside prison once they have done their time.

The Obama administration has voiced similar concerns about federal prosecutors putting so much emphasis on their conviction rates. U.S. Attorney General Eric Holder has said that is not the priority of the U.S. Justice Department under his watch.

“Our success as prosecutors is not measured by how many cases we have won but by how much justice we have done,” Holder told a 2009 Memphis meeting of the National Black Prosecutors Association.

Holder has also been critical of the sentencing disparity between those convicted of dealing powder cocaine and those convicted of dealing crack cocaine.

The court’s Western District, which includes courts in Memphis and Jackson, Tenn., recently began a drug court program in which judges meet periodically with offenders they have sentenced after they have completed their prison sentence to monitor their progress.