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July 14, 2014

Are federal drug sentences for mules now too short?

Drugs and dogsThe question in the title of this post is prompted by this notable and fascinating new article in the New York Times headlined "Second Thoughts on Lighter Sentences for Drug Smugglers." Here are excerpts:

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....

The debate over what constitutes a fair sentence for drug crimes has persisted for decades.  Critics — many of them judges in this court — have said that sentencing guidelines and mandatory minimum punishments had become hugely problematic. Nonviolent drug offenders, like couriers or people selling marijuana on the street, could face longer guideline sentences than an underground gun dealer.  And until recently, possession of five grams of crack warranted a minimum five-year sentence.  To get the same sentence for powdered cocaine possession, 500 grams would be required.

Various reforms have been instituted to address the inequities in sentencing.  In 1994, a “safety valve” provision allowed nonviolent first offenders on drugs — which describes most couriers — to avoid mandatory minimums if they admitted to all prior criminal conduct.  And in 2010, Congress passed legislation toward balancing the crack versus cocaine disparity....

In August, the United States attorney general, Eric H. Holder Jr., ordered prosecutors nationwide to charge couriers and other low-level drug offenders who met certain criteria in a way that did not result in mandatory-minimum sentences.  (Guideline sentences must still be considered, but they are not mandatory.)

Then, in April, the United States Sentencing Commission voted to reduce sentencing guidelines for drug crimes by two points, or several months.  The reduced guidelines go into effect in November, pending congressional approval, but prosecutors in many districts have agreed to apply them now.

The changes made things more difficult in Brooklyn, where prosecutors still wanted to give low-level couriers an incentive to avoid trials and to assist in prosecutions against larger drug distributors. Believing they had to further sweeten the deal, prosecutors agreed to give an additional four points off those reduced sentences for couriers who agreed to cooperate.

As a result, drug-courier defendants can now face sentencing guidelines that suggest no prison time.

My first reaction to this piece is to suggest that it's a nice change of pace for federal judges to now view at least some federal sentencing guidelines to be too lenient and that any problems this creates can and should be addressed through judicial discretion to sentence above the guidelines, case-by-case, as needed and appropriate.  But I imagine this viewpoint is not very satisfying for federal prosecutors and investigators who depend on the threat of severe sentences to get mules to cooperate to their satisfaction.

For additional intriguing and diverse reactions to these intriguing new drug sentencing realities, check out these posts from other informed bloggers:

July 14, 2014 at 10:30 AM | Permalink

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Comments

A Missouri Mule has never been caught.

Posted by: Liberty1st | Jul 17, 2014 3:44:42 PM

drug mules get it from both ends. Federal prosecutors tell them: "talk or else." Drug cartels tell them: "don't talk, or else." Throw in mandatory-minimum sentences--and you have a perfect storm.

cool to hear prosecutors are taking a different approach. but must say--guidelines that project no prison time for mules carrying federal drug quantities sounds radical.

Genaro R. Cortez
Defense Attorney

Posted by: Genaro Cortez | Jul 29, 2014 8:30:03 PM

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