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Drug War Sentencing Injustice

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Drug Warby Jacob G. Hornberger

When a former federal prosecutor who is now a federal judge complains about the lack of justice and fairness in drug-war sentencing, you know that something is dreadfully wrong with the drug war, that is, on top of everything else that is wrong with the drug war.

According to an article in the New York Times, New York federal judge John Gleeson, who is known for meting out high sentences to high-level drug defendants, was set to sentence a man named Jamel Dossie, who Gleeson described as "a young, small-time, street-level drug dealer's assistant."

The crime? Dossie was a middleman in four crack sales, which netted him the grand total of about $140. The big problem for Dossie was that two of the sales barely exceeded 28 grams, which subjected him to the possibility of a mandatory minimum sentence of 5 years in the penitentiary.

Why possibility? Because, believe it or not, whether the mandatory minimum provision of the drug law is discretionary with federal prosecutors.

If the prosecutors choose not to invoke the provision in a particular case, the judge can impose a sentence that he believes is fair under the circumstances of that case. That's been the one of the long-established historical roles of judges. If the prosecutors choose to invoke the provision, however, the judge's hands are tied -- the minimum sentence he is required to impose is 5 years.

In Dossie's case, federal prosecutors chose to invoke the mandatory-minimum provision, leaving the judge no choice but to send Dossie away for 5 years. According to the Times, "Judge Gleeson wrote, 'there is no way I would have sentenced' Mr. Dossie to so long a sentence."

Gleeson issue a pointed critique of the law: "Prosecutors run our federal justice system today. Judges play a subordinate role -- necessary yes, but subordinate nonetheless. Defense counsel take what they can get."

The Times points out:

The Dossie case 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.

Gleeson's solution? He's asking Attorney General Eric Holder Jr. to seek mandatory minimum sentences only against leaders in the drug trade, not small fry like Dossie.

Unfortunately, while Gleeson can see the injustice and unfairness of the mandatory-minimum provision of the drug law, he is unable to see the much bigger picture.

What good is it going to do if Holder changes his policy to suit the judge?

Absolutely no good at all, not in the larger scheme of things. The drug trade will continue going on, just as it has for decades. Small dealers like Dossie will be continue to deal in drugs to make a few bucks. When they're busted and set free, drug war proponents will call for harsher crackdowns in the war on drugs. Bigger operators will continue to deal in larger quantities of drugs, notwithstanding the fact that a certain percentage of them are being busted.

Federal drug agents will continue their busts. Prosecutors will continue prosecuting. Judges like Gleeson will continue imposing their sentences. They will all continue to draw their generous salaries, compliments of hard-pressed taxpaying citizens.

The drug-war charade just keeps going and going and going, leaving in its wake nothing but death, destruction, corruption, overcrowded prisons, and ruined lives, along with federal agents, prosecutors, and judges thinking that if they just keep doing the same thing over and over again, the results might finally be different.

I find it interesting that Gleeson is known for his high sentences in big drug cases. I wonder if he ever ponders what good he's accomplishing with those sentences.

More than 30 years ago, when I was a young lawyer just out of law school, there was a federal judge in San Antonio that had the same first name and the same mindset as Judge Gleeson. His name was John Wood and he was known far and wide as "Maximum John" for the maximum sentences he meted out in drug cases.

One of our clients, a young man, had just been convicted, along with two of his friends, by a federal jury on a one-count criminal indictment charging conspiracy to possess heroin. Mind you, the defendants weren't charged with possessing heroin. They were simply charged with talking about possessing the drug.

Our client and his two friends were brought before Maximum John for sentencing, who proceeded to give each of them the maximum 15-year sentence.

What good did that do? Did it bring a swift end to the drug war? Did it help stem the importation of drugs into the United States?

Nope. None of that. It did no good at all. The drug war had lured three more young men into talking about making some quick big money, just as it would with Jamel Dossie more than 30 years later. When they got caught, there were three more ruined lives.

But nothing changed insofar as the drug war was concerned. Year after year, decade after decade, the busts have continued, followed by prosecutions, convictions, and jail sentences, both long and short.

The problem with lawyers like those federal prosecutors in the Dossie case and with lawyers like Judge Gleeson is that they just can't break free of the statist mindset that was inculcated in them in law school, college, high school, junior high, and elementary school.

They just can't see that they're wasting and ruining their own lives, their own minds, and their own talents enforcing and reforming the inane Sisyphus enterprise known as the war on drugs. Alas, they just cannot see that the only solution is to end this idiocy, before it ruins even one more life.

Jacob Hornberger is founder and president of the Future of Freedom Foundation.


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