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May 28, 2012

"A Tough Judge’s Proposal for Fairer Sentencing"

The title of this post is the headline of this new Sidebar column by Adam Liptak now available via the New York Times. The piece does a terrific job reporting upon and providing context concerning US District Judge John Gleeson's fascinating Dossie opinion from earlier this year (which I blogged about here and here). The piece also makes (too) brief mention of US District Judge William Young's similarly themed (and similarly fascinating) opinion in Gurley from earlier this month (discussed here). Here are excerpts from the Liptak piece:

Judge John Gleeson hears cases where he used to prosecute them, in the federal courthouse in Brooklyn. There, in 1992, he led the team of prosecutors that put the Mafia boss John J. Gotti in prison for life. Judge Gleeson is not shy about meting out tough sentences.  “Most people, including me,” he wrote in a 2010 decision, “agree that the kingpins, masterminds and midlevel managers of drug trafficking enterprises deserve severe punishment.”

But he has lately been saying that his old employer, the Department of Justice, has stopped living up to its name when it comes to some small-time criminals.  Almost 20 years to the day after delivering his closing argument in the Gotti trial, Judge Gleeson considered the fate of Jamel Dossie, whom he called “a young, small-time, street-level drug dealer’s assistant.”

Mr. Dossie was an intermediary in four hand-to-hand crack sales, for which he made a total of about $140.  Two of the sales exceeded, barely, the 28-gram threshold that allows prosecutors to call for a mandatory five-year sentence.  “Just as baseball is a game of inches,” Judge Gleeson wrote, “our drug-offense mandatory minimum provisions create a deadly serious game of grams.”

It is a curious game, one in which a participant rather than the supposed umpire can have the last word, Judge William G. Young of Federal District Court in Boston wrote in a ruling in another case a couple of weeks ago.  “Prosecutors run our federal justice system today,” Judge Young wrote.  “Judges play a subordinate role — necessary yes, but subordinate nonetheless.  Defense counsel take what they can get.”

The prosecutors’ decision to invoke the law calling for a mandatory sentence in Mr. Dossie’s case meant that Judge Gleeson had no choice but to send Mr. Dossie away for five years. Had his hands not been tied, Judge Gleeson wrote, “there is no way I would have sentenced” Mr. Dossie to so long a sentence.  “We had a ‘sentencing proceeding’ that involved no written submissions, no oral advocacy and no judging,” he wrote. “The proceeding had all the solemnity of a driver’s license renewal and took a small fraction of the time.”

The Dossiecase illustrates what some judges say is a common problem: Prosecutors’ insistence on mandatory minimum sentences for minor players in the drug trade has warped the criminal justice system and robbed judges of sentencing authority.... As for Mr. Dossie, the judge wrote, “no one could reasonably characterize him as a leader or manager of anything, let alone of a drug business.”

Judge Gleeson called on Attorney General Eric H. Holder Jr. to implement a new policy at the Department of Justice. “D.O.J. should seek mandatory minimum sentences,” the judge wrote, “only in the cases for which Congress intended them: in cases against leaders and managers of drug enterprises, not the low-level offenders like Dossie who constitute the bulk of the federal drug docket.”

About 74 percent of defendants charged with crimes involving crack cocaine faced a mandatory minimum sentence in the year that ended in September, according to statistics compiled by the United States Sentencing Commission.  But only 5 percent of them led or managed a drug business.

A Justice Department spokeswoman said the administration supported the judicious use of mandatory minimum sentencing laws for some serious crimes.  In a 2010 report, Lanny A. Breuer, an assistant attorney general, said mandatory minimum sentences “remove dangerous offenders from society, ensure just punishment and are an essential tool in gaining cooperation from members of violent street gangs and drug distribution networks.”

Paul G. Cassell, a former federal judge who is now a law professor at the University of Utah, said Judge Gleeson’s proposal to have the Justice Department limit its use of mandatory minimum sentences in drug cases to defendants who played a leadership role was “a brilliant package.”  It was, he said, administrable, fair and “doable in this political environment” because it requires no action from Congress.

Jamel Dossie, meanwhile, is serving what Judge Gleeson called an onerous and disproportionate sentence.  “The only reason for the five-year sentence imposed on Dossie,” Judge Gleeson wrote, “is that the law invoked by the prosecutor required it. It was not a just sentence.”

Some recent related posts:

May 28, 2012 at 06:55 PM | Permalink


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Now if he'd just had the guts to say what the REAL change at the DOJ needs to be. at least 30% of all judges should NOT be former prosecutors but in fact must be NORMAL people with NO CLUE about the law! i'm betting they will get it closer to real justice....plus 20% must be former DEFENSE ATTORNEYS! then we can have some ballance.

Posted by: rodsmith | May 28, 2012 11:00:53 PM

A certain category of the "young, small-time, street-level drug dealer[s'] assistant[s]" to whom Judge Gleeson refers get almost all of these mandatory minimum sentences --- those who are poor, urban-dwelling minorities.

The "young, small-time, street-level drug dealer[s'] assistant[s]" who supplied drugs to George W. Bush and Barack Obama when they were in college were white fraternity boys. You don't see them in federal court facing mandatory minimums.

Posted by: Calif. Capital Defense Counsel | May 29, 2012 2:43:57 AM

CCDC -- Everyone knows that it's only a crime to deal drugs if you're black and on the corner. Otherwise I believe the most accurate description of dealing drugs while white and in the Hamptons is a "youthful indiscretion."

Also, let us pay no mind that our last two presidents have both admitted to drug use and yet champion a system that would have seen them doing time did they not have the fortune of being in the upper crust.

Posted by: Guy | May 29, 2012 8:52:22 AM

Guy --

"Everyone knows that it's only a crime to deal drugs if you're black and on the corner. Otherwise I believe the most accurate description of dealing drugs while white and in the Hamptons is a 'youthful indiscretion.'"

You would have been welcome to try out that theory while I was in the EDVA. Wanna know what the "discount" for being white was?

Try zip. Do you know differently? Were you there?

Were you own problems with the law caused by race?

Posted by: Bill Otis | May 31, 2012 1:06:32 AM

I think the larger point is not necessarily that prosecutors cut charges on small-time white college dealers, but that those cases don't end up in federal court at all...

Posted by: Anon | May 31, 2012 10:38:32 AM

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