Anyone facing federal drug charges knows that the prosecutors’ power has far outstripped the judge’s power in the courtroom. That’s because the power to charge someone lies with the prosecutor, and prosecutors have enormous discretion to charge people under various laws that require the judge to impose mandatory minimum sentences even when such sentences were not originally contemplated by Congress.

The New York Times has an interesting article on Federal District Judge John Gleeson’s recent memorandum regarding sentencing.

President Obama wrote opening about his use of illegal drugs – cocaine and marijuana – in his autobiography. Yet, his Department of Justice has been as tough as any in seeking harsh mandatory minimum sentences for people accused of fairly low level drug crimes.

The article describes the fate of Jamie Dossie, a low level drug dealer who was an intermediate in hand-to-hand crack sales that netted him a grand total of about $140. But because the sales exceeded the law’s 28 gram threshold, Dossie was required to serve at least a 5 year minimum sentence upon a finding of guilt.

Now, you might ask, why didn’t Dossie go to trial? The answer is because, while I don’t know the facts of this case, after trial, the judge might have learned about other drug activity during his sentencing phase. And because the federal sentencing guidelines permit judges to sentence for all uncharged “relevant conduct,” Mr. Dossie could potentially have served a much higher sentence if he went to trial and lost.

So while the judge’s memorandum is certainly a much needed corrective, far more pressing reforms need to be imposed – including a reform of the Sentencing Guidelines themselves – to correct an over-powerful prosecution in Federal criminal cases.