Why does it seem as if the pendulum swings one way far faster than the other? Wasn’t it just the other day when judges were calling for the Smarter Sentencing Act, decrying the harsh excesses of the Sentencing Guidelines and calling for the end of mandatory minimums?
The New York Times notes that judges in the Eastern District of New York, which happens to include JFK Airport, are coming to the conclusion that drug mules are getting away too easy. They’re now having “second thoughts” about the Guidelines sentences:
To avoid clogging up the court, the United States attorney’s office in Brooklyn has embraced a strategic approach that allows couriers to plead guilty and offer information in return for lighter sentences. The policy reflected a view among many prosecutors that the mandatory minimum sentences for drug-related offenses — which require prison terms of five years and higher in these smuggling cases — were too harsh on defendants who were typically nonviolent and disadvantaged.
But in recent months, changes in drug sentencing have served to further lower punishments for these couriers. A year ago, drug couriers regularly faced three years in prison; now they might face guidelines starting at only a few months, or no prison time at all.
These defendants, the mules, are hired to carry drugs across the border, hidden in one place or another on their bodies or in their possessions. They are typically poor, desperate and without any prior convictions, which makes them the perfect target for people who need warm bodies to carry drugs. When the options are carry drugs for a pretty decent payout, or watch your children starve to death, the decision isn’t difficult.
But the piecemeal fixes to the absurdly severe federal sentencing structure, because of its impact on those who don’t match the culpability profile of the drug kingpin, have worked in unexpected ways.
Mr. Douglas, the courier appearing before Judge Mauskopf, started with a base offense level of 22, which is the level for importing between 300 and 400 grams of cocaine. Because Mr. Douglas had no criminal history, that would put him at a 41- to 51-month suggested sentence. But he got four points off for a minimal role, three points off for acceptance of responsibility, two points off for the safety valve provision, and four points more for prosecutors’ amended early-disposition program. Then, in front of Judge Mauskopf, the defense and prosecution argued he should get an additional two points for the amended sentencing guidelines. That brought his guideline level to seven, and the recommended sentence range to zero to six months.
That’s a problem, according to Judge Roslynn Mauskopf, former United States Attorney for the district.
“I have been listening to Judge Garaufis tell me for the past couple of weeks, ‘Why are we even prosecuting the drug cases?’ ” Judge Mauskopf said, referring to another judge, Nicholas G. Garaufis. “And I understand where he’s coming from.”
Without the big club of prison ready to beat them about the head, how will they get people to snitch on their boss, to plead guilty instead of going to trial, and, legitimately, to deter others from being mules? The first two are taken for granted as being virtues. Even the judges who have long fought against unduly harsh drug sentences are having second thoughts.
“This is virtually, you know, a slap on the wrist,” Judge Edward R. Korman of the Eastern District of New York said at a sentencing in May for a Jamaican man who had swallowed 41 pellets of cocaine and was caught at Kennedy. “I don’t even know why they bothered to prosecute.”
Phylicia Lowe, who tried to smuggle 1,000 grams of cocaine in inside food cans in September, walked out of her June sentencing having spent just one day behind bars for the crime. Judge John Gleeson of the Eastern District, a longtime critic of harsh drug penalties, noted her extensive cooperation, but questioned whether she had been truthful with the government. Asking if “a modicum of jail” was appropriate — she had been out on bail post-arrest — Judge Gleeson decided to give Ms. Lowe four months’ home detention plus 200 hours of community service so she could stay in school, an example of what some judges say is a more constructive approach to rehabilitation than prison.
Of course, few mules can be sentenced to home detention and community service, as they live elsewhere and fly in just for the gig. There are additional consequences for these mules, such as deportation, but if they’re poor and desperate enough, chances are they won’t be vacationing at the Grand Canyon anytime soon.
When discussed in terms of the Sentencing Guidelines, together with its various twists and turns, enhancements and departures, it reveals how bizarrely skewed the perspective has become in federal drug sentencing. This is what comes of a micromanaged system, replete with tweaks here and there, to fix the constant stream of problems.
The fear of law and order folks is that activist liberal judges, maybe like Judge Korman, also a former United States Attorney for the Eastern District of New York, or Judge Gleeson, who was a mere Assistant United States Attorney in EDNY (see a theme developing here?), would pin medals on the chests of drug dealers if left to their own devices.
But the problem isn’t the judges, despite calls for their heads whenever someone from afar thinks they’ve been too lenient. The problem is that they’re constrained from doing their jobs as judges, taking into account the specific circumstances of the offense and the offender, and fashioning a sentence as commanded by 18 U.S.C. §3553. Or, to be less lawyerish, a sentence that takes into account the legitimate purpose of the government imprisoning people.
The Guidelines have never been, and will never be, a substitute for judging. Sure, there’s no guarantee that a judge will impose a sentence that pleases everyone, or anyone, but that’s their job. Instead, we ping-pong between too harsh and too lenient, ill-serving the purposes of sentencing on one side or the other.
Though, before they get too down on the mules for their sweet deals, it would behoove the judges to remember that these aren’t people living in palaces built on foundations of cocaine in lush island resorts. Their lives were awful enough before they were enticed to take a terrible chance to put food on their family’s tables.
Their lives are punishment, and it serves no constructive interest to deprive their children of food so that they can be warehoused by the government to send a message. People with hungry children already have a message, and it’s more important to them than any message a judge thinks he’s sending, regardless of the sentencing paradigm.