Kudos to Doug Berman over at Sentencing Law and Policy for pointing out this humdinger of a court opinion from federal judge John Gleeson of the Eastern District of New York. The whole thing is worth reading and is crammed full of criticism of mandatory minimum sentences.
But most interesting of all is this: Judge Gleeson has a bone to pick with the Department of Justice.
And pick it he does. He says federal prosecutors are thwarting the clear intent of Congress. How? By charging small-fry drug offenders, street sellers, and addicts with crimes that carry mandatory minimum sentences. Congress, says the judge, intended those crimes only to apply to people who are leaders or managers of drug conspiracies. But Congress made a horrific mistake when it wrote mandatory minimum drug laws: the draconian sentences are triggered by drug weight and type (e.g., 5 grams of meth gets a five-year mandatory minimum), regardless of the offender's role.
Judge Gleeson points out the absurdity of a quantity-driven sentencing system:
First, as the prosecutor pointed out at [defendant Jamel Dossie's] sentencing, two of his four crack sales happened to exceed the threshold quantity of 28 grams that can trigger the five-year mandatory minimum. They only barely exceeded it – sales three and four put Dossie in mandatory minimum territory by only 1.6 and 5.5 grams, respectively – but just as baseball is a game of inches, our drug-offense mandatory minimum provisions create a deadly serious game of grams.
DOJ can correct this shortcoming -- simply by choosing not to charge people with mandatory minimums if they are not the people those laws were meant for.
This "modest request," in Gleeson's words, isn't crazy -- it lines up with other comments Attorney General Holder has already made about reforming sentencing laws so that they don't snatch up those who are least blameworthy, and treating people as unique individuals at sentencing.
The only problem with Judge Gleeson's reform suggestion: we have to count on prosecutors to carry it out. As the judge knows only too well, federal prosecutors aren't accountable to him, you, me, or anyone. They're not elected, and (unlike Judge Gleeson) their decisions can't be appealed or reversed.
In short, prosecutors are on an honor system not to abuse their power when it comes to using mandatory minimum sentences. We must resort to trusting them to do the right thing.
As Jamel Dossie and tens of thousands like him each year discover, though, the right thing doesn't happen often enough in our justice system.
We applaud Judge Gleeson for calling on the DOJ to do what is right. We hope they listen. But we should all continue to urge Congress to rid us of this hopelessly flawed sentencing system by fixing the mandatory minimum laws themselves.