By William Fisher.

Acknowledging that he had just imposed an “unjust sentence” on a low-level drug dealer, a Federal Judge is charging that he had no choice because US Attorney General Eric Holder has failed to make good on his promise to change the rules.

The unjust sentence — five years in prison — was meted out by Federal District Court Judge John Gleeson to Jamel Dossie, a young, small-time, street-level drug dealer’s assistant.

In his sentencing report, the judge has taken a relatively rare action: He has singled out AG Holder, by name, for failure to make the “relatively modest” changes needed to ensure that sentences will be given to those intended by Congress, and not simply regarded as another victory by federal prosecutors.

Judge Gleeson notes that Dossie was sentenced under a law designed for leaders or managers of drug businesses, adding, “No one could reasonably characterize him as a leader or manager of anything, let alone of a drug business. Like many young men in our community, he was in the drug business because he is a drug user.”

Dossie thus became a victim of Congress’s “war on drugs.” For many headline-hungry members of Congress, the drug war is a gift that keeps on giving. Being seen to be “tough on crime” generates press releases, floor statements, and media interviews.

It was to fight that war that Congress, in 1986, passed the Anti-Drug Abuse Act, (ADAA), which first established mandatory minimum sentences and enhanced maximum sentences for drug-related offenses. From that point forward, judges were largely stripped of their discretion to modify sentences to fit the crime and the criminal. Though the law contains some cases in which Judges can take account of mitigating circumstances, they were largely mandated to follow the rules established by Congress. For example:

The ADAA’s five-year minimum sentence, with a maximum enlarged from 20 to 40 years (the “5-to-40 sentence enhancement” or the “five-year mandatory minimum”), was specifically intended for the managers of drug enterprises, while the Act’s ten-year minimum sentence with life as the maximum (the “ten-to-life sentence enhancement” or the “ten-year mandatory minimum”) was intended for the organizers and leaders.

Dossie was neither, Judge Gleeson said.

He explained that if he did not have to impose this mandatory minimum, Dossie would be sentenced under sentencing Guidelines that are advisory, not mandatory. Dossie’s Guidelines range was 57-71 months, Judge Gleeson said he would have imposed a lower sentence, as he believes that range would be “too severe for a low-level addict selling drugs on the street.” But the prosecutor’s decision to use his discretion to apply the mandatory minimum to the case tied Judge Gleeson’s hands.

Two Bad Breaks

“But Dossie caught two bad breaks,” Judge Gleeson wrote.” First, as the prosecutor pointed out at his 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.

The conspiracy charge to which Dossie pled guilty also aggregates all 88.1 grams, rendering him eligible for the mandatory minimum on that basis as well.”

Judge Gleeson says, “This case illustrates how mandatory minimum sentences in drug cases distort the sentencing process and mandate unjust sentences. They make opaque what [the original anti-drug law] was intended to make transparent. They strip criminal defendants of the due process rights we consider fundamental to our justice system. Most importantly, too many nonviolent, low-level, substance-abusing defendants like Jamel Dossie “lose their claim to a future” — to borrow a phrase from Attorney General Eric H. Holder, Jr. — because lengthy mandatory prison terms sweep reasonable, innovative, and promising alternatives to incarceration off the table at sentencing.”

But Judge Gleeson adds that “there is no need for new legislation to remedy this state of affairs. The Attorney General himself has it within his power to remedy it. He can do so by instructing Department of Justice prosecutors to cite the ten-year mandatory minimum in an indictment only when the government intends to prove that the defendant occupied a leadership role, citing the five-year mandatory minimum only when the government intends to prove a managerial role, and withdrawing the mandatory minimum provision from the case (or reducing it, as the case may be) if the corresponding aggravated role has not been proven by the government or admitted by the defendant.”

The Judge called on the Attorney General to implement such a policy. “It is a modest request,” he said. “It asks only that the Department of Justice (“DOJ”) refrain from dictating severe mandatory minimum penalties when it cannot prove by a preponderance of the evidence that the defendant was the kind of drug dealer for whom those penalties were enacted. By ensuring that the harsh, wooden mandatory minimum provisions are employed only in the circumstances to which Congress clearly intended to limit them, the government could reform an aspect of the criminal justice system that is in need of repair.”

This kind of reform “would promote transparency and accountability in sentencing and return to defendants the due process sentencing rights that are snuffed out in cases like this one,” the judge said, adding:

“Finally, it would be consistent with the Attorney General’s public statements about how our criminal justice system ought to treat defendants like Dossie.”

Judge Gleeson, who was appointed to the Bench by President Bill Clinton, said Congress made a mistake in mandating severe sentences to punish specified roles in drug-trafficking offenses. The sentencing regimen was “triggered not by role but by drug type and quantity instead. If it wanted the statute to serve its explicitly stated purpose, Congress should have said that an offense gets the 5-to-40 sentence enhancement when the defendant is proved to be a manager of a drug business.” But no such proof is necessary; the statute uses quantity as a proxy for conduct.

“So if an offense happens to involve a drug type and quantity that triggers an enhancement, every defendant involved in that crime, whatever his or her actual role, can be treated as a leader or manager at the option of the United States Attorney.”

But “Drug quantity is a poor proxy for culpability generally and for a defendant’s role in a drug business in particular,” Judge Gleeson declares. For example, a low-level member of a drug gang could be ordered by a “king pin” to sell a high quantity of drugs.

However, he adds, “Congress’s mistake of equating drug quantity with a defendant’s role in the offense need not continue to have the devastating consequences on display in this case. If DOJ invokes the harsh sentence enhancements only in cases in which the defendants have supervisory roles — always fewer than 10% of federal drug cases — such unintended and unjust results can be avoided in the future.”

But “in deploying the mandatory minimum penalties, DOJ has disregarded their purpose.

It has turned a law that sought to impose enhanced penalties on a select few into a sentencing regime that imposes them on a great many, producing unfairly harsh consequences that Congress did not intend.”

The DOJ uses mandatory minimum sentences “without regard to their purpose,” the Judge notes. He says that in fiscal year (“FY”) 2011, over 74% of crack defendants faced a mandatory minimum, yet only 5.4% of them occupied an aggravating role of leader or manager of a drug business.”

“Thus, the overwhelming majority of crack defendants who feel the pain of mandatory prison terms are not the criminals Congress had in mind in creating those penalties. The ‘safety valve’” provision that was supposed to save minor defendants from the two-by-four that a mandatory minimum becomes on sentencing day has too many conditions to be effective.”

“Even though more than 94% of crack defendants have no leadership or managerial role, fewer than 10% of such defendants qualify for the safety valve.”

Dossie’s sole function was to ferry money to the supplier and crack to the informant on four occasions for a total gain to himself of $140, the judge said.

Despite the harsh Guidelines range, Dossie would have had access to justice if he had not been charged with the five-year mandatory minimum enacted for drug business managers, the Judge noted.

Second Bad Break

Dossie’s second bad break occurred when the government chose to cite the mandatory minimum provision in the indictment. If it hadn’t, I would have been permitted, indeed obligated, to consider, among others, the facts that (1) Dossie had a very minor role in the offense; (2) the drugs he helped to sell weren’t his, and he got hardly any money for his involvement; (3) Dossie got off to a very rocky start in life — there’s no surer sign of a dysfunctional childhood than a family court judge ordering a 16-year-old out of his home and into a residential drug treatment program; (4) Dossie’s criminal record and unsuccessful drug treatment suggest strongly that his legal problems all arose from a drug problem he developed as a child; (5) Dossie is from a very supportive family — his family made all of his court appearances — which could very well have provided the support he needs to get and remain drug-free; and (6) Dossie is genuinely remorseful.

Judge Gleeson says, “I would have considered all of these factors in sentencing Dossie, and there is no way I would have sentenced him to a prison term within the severe advisory range. I might even have given him the chance to enter our Court’s Pretrial Opportunity Program, which would have given Dossie the chance to both conquer his substance abuse problem and avoid prison altogether.”

(The Pretrial Opportunity Program is designed for nonviolent defendants with documented substance abuse problems. Participating defendants have their sentences postponed to engage in drug treatment that involves monthly meetings with the sentencing judge and the Chief Magistrate Judge of the district. The program relies on drug court methodologies that have been proven successful in many state criminal justice systems. If the defendant successfully completes the program by, inter alia, staying drug-free for at least one year, the post-arrest rehabilitation is considered by the sentencing judge.)

“Instead, we had a ‘sentencing proceeding’ that involved no written submissions, no oral advocacy, and no judging. The defense lawyer stated the obvious: The five-year mandatory minimum was more than necessary to properly punish Dossie. The prosecutor agreed that the mandatory minimum of five years should be the sentence. So that was the sentence. The proceeding had all the solemnity of a driver’s license renewal and took a small fraction of the time,” the Judge said.

He declared that, “When I observed at Dossie’s sentencing that the five-year mandatory minimum was being used by the government to overly punish a defendant for whom it was not intended, the prosecutor assured me that there were “other factors” that justified the mandatory five-year penalty. Specifically, the colloquy went as follows:

The Court: He’s not a kingpin or a manager, he’s a street-level dealer, and one would think that if a 60-month sentence were appropriate you’d talk the judge into it rather than bind the judge into it. I think it’s an inappropriate exercise of discretion given the purpose of these laws.

The Prosecutor: Well, I think in terms of the exercise of discretion, I don’t think that the only question from the office’s perspective is what the quantity involved is. I think there are a lot of other factors and information that go into it. And because we’re not relying on any of that at sentencing I wouldn’t necessarily belabor it, but I think there are other factors that go into a charging decision and I can represent to the Court that there are besides just mere quantity.

The Judge says the Dossie case reveals how mandatory-minimum provisions create the ultimate opaque sentencing regime: “No explanation is required for why Dossie must do five years, none of the ‘factors’” that went into the selection of that sentence was offered, and appellate review is impossible.”

He explains that “When I pressed the government further, the prosecutor reluctantly implied that the decision to charge Dossie with the mandatory minimum might have related to “information that. . . link[s] him to a gang.” I agree that if Dossie were dealing drugs as his way of participating in a gang, that would be a relevant, aggravating sentencing consideration. I think any judge would want to know facts like what sort of gang it was, what Dossie’s alleged link to it was, how long any such link lasted, and how Dossie’s actions as a middleman in street-level drug deals were related to the gang. But in this respect as well, Dossie’s case places in clear relief the insidious consequences of mandatory sentencing provisions.”

He concludes, “If not for the mandatory minimum, Dossie would have had the opportunity to contest the government’s suggestion that his offense was gang-related, and the government would have had the obligation to prove it.”

In Dossie’s case, the government’s unreviewable decision to invoke the mandatory sentencing provision made the actual facts irrelevant. Dossie might have denied a gang affiliation or that any such affiliation had anything to do with his offense. The government might not have been able to prove its suggestion that Dossie was linked to a gang. Dossie, for all we know, might even have been able to affirmatively disprove the link. But because a mandatory minimum was involved and everyone agreed that Dossie should not be sentenced above that minimum, none of these facts mattered. The government simply dictated a five-year sentence without even having to allege, let alone prove, the aggravating fact that it implied warranted the sentence.”

Mandatory Injustice

“There is no fairness in a system that allows [this] to happen,” Judge Gleeson wrote.

“I am mindful of the fact that federal prosecutors find significant value in the way that charging mandatory minimum sentences helps them solicit the cooperation of defendants,” he wrote.

As a former Republican member of Congress testified last year before a subcommittee of the House Committee on Appropriations, drug courts are proven solutions — from both the fiscal and public-safety perspectives — to the problems created by substance abusers committing crimes. Drug courts and other alternatives to incarceration reduce substance abuse and crime more effectively and much less expensively than incarceration, probation, or treatment programs not involving judicial participation.

“But the benefits of drug treatment and drug courts as alternatives to incarceration for nonviolent offenders are unavailable when DOJ itself mandates incarceration by invoking mandatory minimum sentences. Those provisions continue to be routinely invoked by DOJ against nonviolent, low-level offenders, even though it is crystal clear that Congress did not intend them to be used against such defendants. The result: Judges are removed from the sentencing process, along with transparency, appellate review, and, most importantly, justice.”

For these routine crimes, “Young men like Jamel Dossie end up losing out on what may be their last chance to save their future,” according to AG Holder.

A number of well-respected legal experts were consulted in researching this article. One of them was Brian Foley, currently a Professor of Law at Florida Coastal School of Law.This is his take on mandatory minimum sentencing:

“Mandatory minimums tie judges’ hands and turn sentencing into a robotic technical act. There is no mercy — there is not even any thinking — when a judge is required to impose a mandatory minimum. These sentences are created by legislators far away from the people the laws affect, legislators influenced by beliefs that prison is the only solution to crime,” Foley said. “And these mandatory minimums get harsher and harsher. Not because we have more crime, but because of what has been called a ‘ratchet effect’: Each legislative session has to be tougher on crime than the previous session,” Foley said.

As a result, we have arrived at the “runaway legislature” that the Framers dreaded, as described by the United States Supreme Court 100 years ago: “With power in a legislature great, if not unlimited, to give criminal character to the actions of men, with power unlimited to fix terms of imprisonment with what accompaniments they might, what more potent instrument of cruelty could be put into the hands of power?”

Careful inquiry in many cases would show that incarceration is unnecessary and cruel, Foley asserts. “So would a little mercy — a word we don’t hear anymore in the context of our so-called justice system,” he said.

William Fisher has managed economic development programs in the Middle East and elsewhere for the US State Department and the US Agency for International Development. He served in the international affairs area in the Kennedy Administration and now writes on subjects ranging from human rights to foreign affairs for a number of newspapers and online journals.

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William Fisher has managed economic development programs for the U.S. State Department and the U.S. Agency for International Development in the Middle East, North Africa, Latin America, Asia and elsewhere for the past 25 years. He has supervised major multi-year projects for AID in Egypt, where he lived and worked for three years. He returned later with his team to design Egypt's agricultural strategy. Fisher served in the international affairs area in the administration of President John F. Kennedy. He began his working life as a reporter and bureau chief for the Daytona Beach News-Journal and the Associated Press in Florida. He now reports on a wide-range of issues for a number of online journals.