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May 9, 2012

Former federal prosecutor urges "Mandatory minimums for kingpins only"

This recent National Law Journal commentary by Jim Walden, a former federal prosecutor in EDNY, voices support for US District Judge John Gleeson's recent recommendation in US v. Dossie, No. 11-CR-237 (EDNY Mar. 30, 2012) (discussed here), that federal prosecutors show much more restraint in their use of federal drug statutes that carry mandatory minimum sentencing terms.  Here are excerpts:

I support the war on drugs. Indeed, I can fairly be called a hawk. I spent most of my nearly nine-year career as a federal prosecutor attacking (largely white and Asian) drug-trafficking organizations and putting their members behind bars for long stretches. For every wide-eyed, liberal, young lawyer I meet who naïvely criticizes the wisdom and resources this "war" has entailed, I issue the same challenge: Read the daily papers and keep track of drug-related murders, assaults, robberies, break-ins and general violence for six months — and then explain to me why drug enforcement should not be one of our top enforcement priorities.

Cracking down on the street-level organizations, and stopping the collateral damage they inflict, is a laudable goal, an essential one.  Doing so at the expense of fairness and equity is not, and street-level traffickers should not face the same consequences Congress intended for kingpins.

No one would describe Judge John Gleeson of the Eastern District of New York as "soft" on drug crime, and some might describe him as fairly "hawkish" himself. His prestigious career as a federal prosecutor, spanning almost two decades, bears this out.... In a recent case, U.S. v. Dossie, Gleeson called on U.S. Attorney General Eric Holder Jr. to reform DOJ's inconsistent and irrational use of mandatory-minimum sentences in drug cases, reserving them for drug kingpins, as Congress intended.  In clear and terse prose, Gleeson described a system that works to "strip criminal defendants of the due-process rights we consider fundamental to our justice system."

The specific case concerned — of course — a young, black, street-level dealer, who turned to drug distribution to support his habit. This did not stop DOJ from seeking to enforce a harsh mandatory-minimum sentence.  Gleeson's conclusion is clear: "This case illustrates how mandatory minimum sentences in drug cases distort the sentencing process and mandate unjust sentences."  He respectfully urged the attorney general to reform DOJ's policy, reserving the use of mandatory-minimum penalties for the managers and leaders of drug enterprises whom Congress intended to target.

Eric Holder should listen to John Gleeson.

May 9, 2012 at 09:14 AM | Permalink


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When the mandatory minimums were adopted in the early 1980's, the Department of Justice and the DEA assured Congress that the drug weights that triggered the minimums would be limited to those who were most responsible for drug trafficking. Although no one apparently used the word "kingpin", the intent was clear: the people who possessed enough drugs to be subject to a mandatory minimum would be those higher up the chain, the leaders and organizers (to use Guideline terms). Instead, most of the people subject to the minimums are truck drivers, housewives, students, home car providers, small time criminals. Very few people serving mandatory minimum sentences are what anyone would call "kingpins."

Posted by: C.A. | May 9, 2012 10:14:10 AM

what is suprising is that we are SUPRISED! The govt did the same thing decades before with RICO that was to be used to break up the MOB but shortly after passage was used for pretty much everyone BUT the mob!

face it 200 year of govt actions proves one thing. How can you tell they are lieing! Their Mouths are MOVING!

Posted by: rodsmith | May 9, 2012 10:36:11 AM

Money laundering has also progressed the same way. It was meant to punish those who were obviously helping drug kingpins and mobsters clean their copious dirty cash through complex transactions. Their sole role was as THE money launderer who helped make these criminal enterprises worthwhile for the perpetrators.
Early decisions where the DOJ charged money laundering for mundane, non-complex spending such as buying a car with drug proceeds were frowned on by judges who stating "the money laundering statutes are not "money spending statutes". But other judges allowed the DOJ to successfully bring multiple successful money laundering charges for low level, easily traceable SPENDING. Precedent has prevailed to the point where perfectly innocent people can be easily prosecuted under the money laundering statutes for the unknowing receipt and spending of criminal funds. I should know---in 2011 I underwent a three week federal trial for doing such common acts as buying a boat, and lending my sister money. While I was acquitted by the jury of all counts, it is NO CONSOLATION to me to find myself in the position to be prosecuted in the first place. The ease with which prosecutors may bring money laundering charges has gotten completely out of control, and bears no relationship to what Congress intended when it originally set them into place. The DOJ also uses money laundering charges to TACK ON (piling on of "points" in the sentencing structure) that subject defendants to even more pressure to plead guilty to whatever other charges the DOJ might bring, making the decision to go to trial to fight charges even MORE fraught with peril than it already is.

Posted by: folly | May 9, 2012 12:53:42 PM

Chairman Leahy could hold a hearing anytime he wants. Oddly, I don't see one scheduled.

Posted by: Bill Otis | May 10, 2012 9:16:45 AM

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