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April 2, 2012

Former US Attorney, and now District Judge, makes pitch to AG Holder on mandatory minimum charging

Thanks to a helpful reader, I just learned about the potent opinion issued late last week by US District Judge John Gleeson in United States v. Dossie, No. 11-CR-237 (E.D.N.Y. March 30, 2012) (available for download below). The opinion is a must-read for various reasons as these opening paragraphs suggest:

This case illustrates how mandatory minimum sentences in drug cases distort the sentencing process and mandate unjust sentences. In the substantial percentage of cases in which they apply, they produce a sentencing regime that is worse than the one the Sentencing Reform Act of 1984 was enacted to replace. They make opaque what that law was intended to make transparent. They strip criminal defendants of the due process rights we consider fundamental to our justice system. Most importantly, too many nonviolent, low-level, substance-abusing defendants like Jamel Dossie “lose their claim to a future” -- to borrow a phrase from Attorney General Eric H. Holder, Jr. -- because lengthy mandatory prison terms sweep reasonable, innovative, and promising alternatives to incarceration off the table at sentencing.

There is no need for new legislation to remedy this state of affairs. The Attorney General himself has it within his power to remedy it.  He can do so by

  • citing to the ten-year mandatory minimum in an indictment only when the government intends to prove that the defendant occupied a leadership role that warrants a four-level upward adjustment under U.S.S.G. § 3B1.1(a);  
  • citing to the five-year mandatory minimum only when the government intends to prove a managerial role worthy of a three- or two-level upward adjustment under § 3B1.1(b) or (c); and  
  • withdrawing the mandatory minimum provision from the case (or reducing it, as the case may be) if the corresponding aggravated role has not been proven by the government or admitted by the defendant.

I respectfully urge the Attorney General to implement such a policy.  It is a modest request. It asks only that the Department of Justice (“DOJ”) refrain from dictating severe mandatory minimum penalties when it cannot prove by a preponderance of the evidence that the defendant was the kind of drug dealer for whom those penalties were enacted.  By ensuring that the harsh, wooden mandatory minimum provisions are employed only in the circumstances to which Congress clearly intended to limit them, the government could reform an aspect of the criminal justice system that is in need of repair.  The reform would promote transparency and accountability in sentencing and return to defendants the due process sentencing rights that are snuffed out in cases like this one.  Finally, it would be consistent with the Attorney General’s public statements about how our criminal justice system ought to treat defendants like Dossie.

Download US-Dossie opinion

April 2, 2012 at 12:38 PM | Permalink


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Judge Gleeson's speech (and that's what it is) is a wonderfully vivid platform for someone running for office or seeking appointment in one of the political branches.

I guess my only other thought is the defendant's very light treatment the first time around might (justifiably?) have led him to think that there wasn't all that much wrong with involving himself with drugs. Perhaps the system would have served him, and the public, better by delivering a stronger message at the outset.

Posted by: Bill Otis | Apr 2, 2012 3:17:01 PM

Also a wonderfully vivid platform for someone calling for the wise use of prosecutorial discretion.

Posted by: LLM | Apr 2, 2012 5:59:45 PM

LLM --

I have yet to hear a defendant, anytime, anywhere, say, "Yes, my prosecution was a wise use of prosecutorial resources."

If that is Judge Gleeson's main point, however, he is free to step down and ask to be appointed US Attorney, so that he can actually do something other than wax eloquent.

Posted by: Bill Otis | Apr 2, 2012 7:01:38 PM

Bill --

That's probably because you've never been a defense lawyer.

I have been both a prosecutor and a defense lawyer, and in the latter capacity I have indeed had clients tell me that they were glad to have been caught and prosecuted. I have had more than one say that prosecution saved their lives.

Posted by: LLM | Apr 2, 2012 7:22:04 PM

LLM --

I'm thrilled to see a defense lawyer give so glowing an endorsement to prosecutions. If you've read much on this blog, the main thing that gets said is that prosecutions are anything from a waste of money to the outcroppings of the fascist plot to destroy the lower class.

I will be saving for my files your note that, as a defense lawyer, you've had cases in which defendants thought the prosecuiton saved their lives.

Many thanks for chiming in.

Posted by: Bill Otis | Apr 2, 2012 8:46:36 PM

Bill --

Sometimes prosecutions are indeed a waste of money (I'm not so sure they're often, if ever, the outcroppings of a fascist plot). And sometimes they save lives -- including that of the defendant. It's not a one-size-fits-all kind of thing.

Posted by: LLM | Apr 2, 2012 9:26:10 PM

LLM --

"It's not a one-size-fits-all kind of thing."

Exactly. Which is why, in the context of punishment, it would be wrong to abolish the death penalty in advance for every case.

Posted by: Bill Otis | Apr 3, 2012 11:45:38 AM

Bill --

And also why mandatory minimums are unwise.

Posted by: LLM | Apr 3, 2012 1:50:07 PM

LLM --

I don't agree. The defendant's behavior affects whether he gets a MM; indeed, it's the primary determinant. But if the DP were abolished, no behavior, including mass murder or rape/murder of children, would allow the jury to impose it.

BTW, do you favor or oppose the DP?

Posted by: Bill Otis | Apr 3, 2012 2:38:55 PM

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