Federal Sentencing Laws Need Reform, But They’re Not Out to Get You

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Conservative columnist George Will wrote a very good column Christmas week about the horror of federal sentencing laws and mandatory minimums.

Will was riffing off of a Statement of Reasons (pdf) released by a federal judge in New York criticizing mandatory minimum drug sentences that are used or threatened to encourage early guilty pleas. 21 U.S.C. Sec. 851 allows a federal prosecutor, in his or her discretion, to notify the court of his intention to seek to double sentences in drug-related cases where there has been prior qualifying convictions pursuant to 21 U.S.C. Sec. 841.

Scott Greenfield notes that 851 was originally designed by Congress to afford drug defendants some protection – i.e., notice – of a potentially harsh sentence. Instead, the 851 has been a turned into a tool… weapon?… to exact additional punishments if cooperation, including, but not limited to, an early guilty plea is not forthcoming from the defendant.

Judge John Gleeson writes in his Statement of Reasons in U.S. v. Kupa:

My focus here is narrow and my point is simple: as the defendant Lulzim Kupa’s case and countless others show, the government abuses its power to file prior felony informations in drug trafficking cases. The single most important factor that influences the government’s decision whether to file or threaten to file a prior felony information (or to withdraw or promise to withdraw one that has previously been filed) is illegitimate. When it enacted § 851 in 1970, Congress had in mind the world that DOJ asked it to create, in which federal prosecutors would carefully cull from the large number of defendants with prior drug felony convictions the hardened, professional drug traffickers who should face recidivism enhancements upon conviction. But instead federal prosecutors exercise their discretion by reference to a factor that passes in the night with culpability: whether the defendant pleads guilty.

Gleeson recognizes that the government has taken some steps toward making federal drug laws fairer. President Obama reduced the disparity in sentencing laws for crack cocaine, and Attorney General Eric Holder put out a memorandum over the summer encouraging prosecutors to be more circumspect in seeking punishment in minor drug offenses.

But much more needs to be done:

Prior felony informations [21 USC 851] don’t just tinker with sentencing outcomes; by doubling mandatory minimums and sometimes mandating life in prison, they produce the sentencing equivalent of a two-by-four to the forehead. The government’s use of them coerces guilty pleas and produces sentences so excessively severe they take your breath away. Prior felony informations have played a key role in helping to place the federal criminal trial on the endangered species list.

I’d say it’s useful to have the discussion about how sentencing laws in the federal system distort the constitutional role of the jury, taking it out of the picture in all but a very tiny percentage of drug cases.

What is not helpful is this column in the News & Observer which serves to impugn the integrity of participants in what is a terribly constructed criminal justice system.

Take, for instance, the claim the N&O that the government “knowing[ly] use[s]” false ‘snitch’ testimony; that prosecutors are, in effect, committing frauds on the court.

Is that really so? I don’t think so. There are always bad apples – bad prosecutors, bad defense lawyers – who do bad things. But this isn’t the rule. Prosecutors, I believe, genuinely believe the testimony they put before the court, including snitch testimony. And snitch testimony can be accurate testimony, even if there is a strong incentive for snitches to exaggerate the drug weights of co-conspirators or lie about co-conspirators involvement in order to maximize the snitch’s own 5K1.1 benefits.

The second claim in the N&O: “Defense lawyers who challenge the evidence are blackballed by federal prosecutors to encourage their cooperation” is just not true. A defense lawyer who vigorously defends his or her clients is generally regarded as a good defense lawyer, provided the defense lawyer behaves in a professional manner.

After all, many prosecutors are keenly aware of how dangerous the criminal justice system is, and they can imagine, were they in the position of having to hire a defense lawyer, they’d want to hire a good one.

Frivolous motions, abusive questioning of a witness, impugning the integrity of a witness without a good faith basis, and playing dirty ball are not respected.

Last year I sat as second chair in a federal criminal case involving a death. As we defended our client, we vigorously questioned the police and a snitch. We pointed out inconsistencies in the reports, and inconsistencies between the snitch’s testimony and other believable evidence. The client had given a confession to the shooting in a roughly 90 minute police interview. He had, in our view, distanced himself from the drug sale.

It was our argument that the client had not used the firearm in furtherance of a drug trafficking offense, but had rather used it for self defense because he knew he was being threatened by a rival drug gang.

After a three day trial, the jury convicted following three hours of deliberation. At no point did the prosecutor or law enforcement blackball us, even though we fought a very vigorous battle in defense of our client who was not liked by prosecutors or police.

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