<< Washington Supreme Court Reverses Another Absurd Order in the McEnroe/Anderson Case | Main | Peer Review, Corruption, Junk Science, and Advocacy Science >>

Not to Say I Told You So About Sentencing...

About six weeks ago, I testified before the House Task Force on Over-Criminalization.  The focus of the hearing was on mandatory minimum sentencing in federal law and, more generally, on whether federal drug sentences are "too long."  

I closed my remarks by asking Congress to wait for the results of a couple of recent developments (the AG's effective abandonment of mandatory minimums for many drug crimes, and the USSC's two-level guidelines reduction for drug offenses).  For those who believe in "evidence-based" sentencing, it would seem natural to want to see some, well, evidence:  Maybe these new measures would work out, and maybe not.  Time would tell.

I can't say that Congress took my advice exactly, but the Smarter Sentencing Act, which would lighten if not cripple drug sentencing, has stalled in Congress over the summer.  And sure enough, evidence from the new norm of lighter sentencing has started to come in, reported by, of all things, the NYT.

The story, and the evidence, is underneath this headline:  "Second Thoughts for Lighter Sentences for Drug Smugglers".

My goodness.
The story tells us (emphasis added):

There was the grandmother who hid heroin in the rails of her wheelchair. The pair of women who sewed cocaine packets into their hair extensions. And the Trinidadian man who stuffed cocaine in frozen goat meat.

For years, a steady parade of drug smugglers have tried all sorts of ways to ferry contraband into the United States through Kennedy International Airport in Queens, posing a challenge not only to Customs and Border Protection officers, but also to federal prosecutors.

To avoid clogging up the court, the United States attorney's office in Brooklyn has embraced a strategic approach that allows couriers to plead guilty and offer information in return for lighter sentences. The policy reflected a view among many prosecutors that the mandatory minimum sentences for drug-related offenses -- which require prison terms of five years and higher in these smuggling cases -- were too harsh on defendants who were typically nonviolent and disadvantaged.

But in recent months, changes in drug sentencing have served to further lower punishments for these couriers. A year ago, drug couriers regularly faced three years in prison; now they might face guidelines starting at only a few months, or no prison time at all.

The changes are raising questions of whether the pendulum has swung too far. Some prosecutors say that couriers have little to no incentive to cooperate anymore. Border patrol officials grumble that they are working to catch smugglers, only to have them face little punishment. And judges who once denounced the harsh sentencing guidelines are now having second thoughts.

"This is virtually, you know, a slap on the wrist," Judge Edward R. Korman of the Eastern District of New York said at a sentencing in May for a Jamaican man who had swallowed 41 pellets of cocaine and was caught at Kennedy. "I don't even know why they bothered to prosecute."

Just so.

I should point out two things here.  First, the judges in the EDNY are among the most liberal in the country; that District is home, for example, to Judges Jack Weinstein and John Gleeson, both of whose snarling criticisms of mandatory minimum sentencing have been covered at considerable length by that self-same NYT, and have been featured for years by those supporting the Smarter Sentencing Act.

Second, now that we see the costly downside of lower sentencing, a particular hat-tip is due former AUSA Eric Everson, who also testified at the House hearing. Although Mr. Everson was pelted with adverse if not angry questions  --  questions with more than a little racial tinge to them  --  he was uniformly courteous, steadfast and convincing in explaining the inevitability of what we now see happening.  That is, he spelled out in the sort of detail known only by an experienced AUSA how essential the current, strong sentencing structure is for breaking down drug gangs: When sentences get reduced, the incentive to cooperate gets reduced with them, and the ability successfully to go up the chain to prosecute the most violent, dangerous and socially destructive drug dealers evaporates. You don't have to be a rocket scientist to figure out what then happens with crime.

As I have noted several times, the present system is replete with opportunities for deserving and/or cooperative defendants to avoid mandatory minimums.  Further handicapping the prosecution is certain to result  --  as it has in the past  --  in more crime and more crime victimization.  The current NYT story is only the tip of an iceberg we can  --  and, if we want to preserve the gains in fighting crime we've made in the last generation  --  must avoid.

Leave a comment

Monthly Archives