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Jewish World Review Jan. 7, 2004 / 13 Teves, 5764

Debra J. Saunders

Debra J. Saunders
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Good news for bad guys

http://www.NewsAndOpinion.com | Sunday night's "60 Minutes" segment on federal mandatory-minimum drug sentences — "More Than They Deserve" — touched on a facet of the federal drug-sentencing system that might surprise many people.


No. 1: Laws that were supposed to put away the bad guys for long, hard prison time often are being used to keep low-level offenders behind bars for decades longer than drug kingpins.


Don't take my word on it. Former warden Joe Bogan stood near the federal prison in Fort Worth, Texas, that he once ran and told the camera, "If you look back here in this prison, there are maybe 1,400 inmates, and probably 700 to 800 of them could be out. And their sentences would still be just. It would still hold them accountable for their criminal conduct."


When I reached Bogan on his cell phone, I asked him how many drug kingpins he thought were in federal prison today. Bogan answered, "My estimation is of the 85,000 drug traffickers in the federal system, there are probably fewer than 1 percent whom you could call kingpins."


Some inmates serving long sentences are first-time offenders like Brenda Valencia, who was 19 years old when she was arrested for driving a drug dealer to another dealer's home. The feds charged Valencia for her role in a drug conspiracy. Her sentence: 12.5 years. The sentencing judge wrote that he found Valencia's sentence to be "an outrage" but that the law forced him to apply it.


"What passes for a drug kingpin in 99 percent of the cases is nothing more than a young man who can't even afford a lawyer when he's hauled into court," U.S. District Court Judge Patrick Murphy of East St. Louis told "60 Minutes." "I've seen very few drug kings."


No. 2: Prosecutors can reduce the sentences of drug kingpins who testify against others. But underlings new to the drug business, who can only implicate those who have implicated them, don't have as much bargaining power.


As Bogan noted, if you are a "drug kingpin, then you have a lot of information with which to bargain if you are caught."

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No. 3: Conspiracy laws are not only used to punish drug lords for the deals they direct; they also are used to incarcerate small fish for the deals their higher-ups make. "The conspiracy amendment of 1988 was designed to assure that kingpins could not escape prosecution for the drug crimes they directed. Now, the Justice Department is misusing that law to attribute to the lowest-level operatives all of the responsibilities of the kingpin," said Eric Sterling, who helped write the 1986 federal drug sentencing law and then later created the Criminal Justice Policy Foundation to work to atone for the law's excesses.


The worst part is that "60 Minutes" didn't touch on the most egregious case in the federal system, that of Clarence Aaron, who is serving a life sentence with no possibility of parole for a first-time, non-violent offense that netted him $1,500. "60 Minutes'' executive producer David Gelber confirmed that federal officials wouldn't allow the show access to Aaron.


San Francisco U.S. Attorney Kevin Ryan noted that there have been many changes in the sentencing guidelines since Aaron was convicted, including the "safety valve," which mitigates sentences for first-time offenders. He's right, I'm glad to say, but until Washington reduces the sentences of older cases, justice won't be done.


Ryan also noted that his office doesn't focus on prosecuting small fish. "We look for leaders of these (criminal) organizations. We are not interested, typically, in the low-end individuals," Ryan noted. He added that some notorious sentences didn't fit his understanding of the sentencing guidelines.


The intent of the guidelines, Ryan noted, was "to make sure that everyone is treated the same for their conduct." But there are too many voices in and around the system complaining that the desire to make judges issue sentences more equitably has moved the inequality to prosecutors' offices. Where there are good prosecutors, there is little problem. Where prosecutors are unreasonable, there is harsh over-sentencing.


Whenever I write on federal mandatory minimums (and I've written frequently on the case of Clarence Aaron), I receive e-mail from some readers who believe in no mercy whatsoever for drug offenders, no matter how minor the charge, because it makes them feel safer to know that dealers are doing hard time. I feel safer, too, when high-level and violent dealers do decades in prison. But if you feel safer because first-time offenders are in for 12.5 years to eternity, it's because you've bought into an illusion: It's like feeling safer because Al Capone's accountant is doing more time than Capone.

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