When Eastern District of New York Judge John Gleeson used his sentencing memo in  U.S. v. Dossie to send a message to the Attorney General to stop being such a mindless tool, his purpose was to castigate the Department of Justice and its co-conspirators in abusing the power it was given just because they could. 

Former prosecutor turned Gibson Dunn partner, Jim Walden, didn’t quite get the message.  In the National Law Journal, Walden makes sure his bona fides are clear:

I support the war on drugs. Indeed, I can fairly be called a hawk. I spent most of my nearly nine-year career as a federal prosecutor attacking (largely white and Asian) drug-trafficking organizations and putting their members behind bars for long stretches. For every wide-eyed, liberal, young lawyer I meet who naïvely criticizes the wisdom and resources this “war” has entailed, I issue the same challenge: Read the daily papers and keep track of drug-related murders, assaults, robberies, break-ins and general violence for six months — and then explain to me why drug enforcement should not be one of our top enforcement priorities.

Glad to know that you’re available to have lunch with Andy McCarthy, though this is no doubt expressed so that other “hawks” realize you’re no “wide-eyed, liberal” who “naïvely criticizes” the drug war.  As Walden informs, however, the problem isn’t the worthiness of the war, but that it has exceeded its purpose:

Congress empowered the Department of Justice — through the creation of mandatory-minimum sentences — to end the careers of committed drug dealers. Second, the mandatory-minimum sentences were intended to be used against drug “kingpins” — the people at the upper echelons of large trafficking organizations, who make the most money, wield the most power and inflict the greatest violence and destruction.

Is that really what Congress did, or did you just believe the press release with all your heart and soul, the stuff meant to keep the nice folks in Peoria happy and buy votes in Cincinnati.  The story behind mandatory minimums was that it was to put drug kingpins in prison, but the quantities at which mandatory minimums kick in tells a different story.  Take a peak inside any federal prison and tell us how many cartel drug kingpins you see in those cells?  They’re filled to capacity, and not a kingpin to be found.

Walden, the drug hawk, contends that the problem isn’t with the war, or the law, but the overuse of mandatory minimums by prosecutors.

Cracking down on the street-level organizations, and stopping the collateral damage they inflict, is a laudable goal, an essential one. Doing so at the expense of fairness and equity is not, and street-level traffickers should not face the same consequences Congress intended for kingpins.

This is where Judge Gleeson’s Dossie decision comes into play. And where it’s artfully abused.  Using Dossie as the exemplar, Walden argues that prosecutors could “cure” the lack of fairness and equity by exercising better discretion in applying the mandatory minimums.  The problem, thus, isn’t that the law is horrendously wrong, imposing mandatory minimums on people who fall a bit shy of drug kingpin.  No, no. No problem there. It’s merely an empowerment of the DOJ to have the weapons available for when Prosecutors, there to protect us from the ravages of crime, feel the need to impose these harsh sentences. 

Yet again, we’re asked to trust those in power to exercise it as they see fit.  Trust them. Believe in them. Don’t worry our naive heads about it, as they will protect us from the evil people.  Let them have their mandatory minimums, and smarter people than us will remind the Prosecutors should they forget Congress’ will, to exercise their vast but necessary power with mercy and discretion, fairness and equity.

Except that’s neither how the law works, nor is supposed to work.  The law is not meant to be a bludgeon in the hands of the government, where the powerful get to exercise it if and when they deem it necessary.  That Hawkish Mr. Walden trusts the Department of Justice to tread lightly where he, in his hawkish personal opinion, believes it’s warranted is not a substitute for my vision of fairness and equity. 

It’s not that we disagree that street level drug dealers should not be subject to the mandatory minimums. Indeed, we are in complete agreement, to that extent.  But I have no plans on handing unfettered discretion to the government to decide if and when to slam a defendant, because someone in the United States Attorneys office has decided that he’s the one who deserves it.

What makes posts like Walden’s insidious is that many will applaud his take, that he argues against the application of mandatory minimums to non-kingpins.  Woo hoo, they cry. He’s one of us.  Do not be fooled.  He is most assuredly not one of us, whoever us is.  He is a purveyor of omnipotent government, with only Prosecutorial Oblige to limit its worst impulses. 

If you trust the government to be all-powerful, but only use that power when it’s deemed necessary, than maybe you can go to lunch with Walden and McCarthy.  If you prefer that Congress enact laws that prevent the government from using the bludgeon at will, then don’t be fooled. When the government has power, it uses it.  As long as there are mandatory minimums, there will be full prisons.