JOHN GLEESON, District Judge:
This case illustrates how mandatory minimum sentences in drug cases distort the sentencing process and mandate unjust sentences. In the substantial percentage of cases in which they apply, they produce a sentencing regime that is worse than the one the Sentencing Reform Act of 1984 was enacted to replace. They make opaque what that 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.
I respectfully urge the Attorney General to implement such a policy. It is a modest request. 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. The 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. Finally, it would be consistent with the Attorney General's public statements about how our criminal justice system ought to treat defendants like Dossie.
Already engaged in a fervent war on drugs, Congress was galvanized by the tragic death by overdose of University of Maryland basketball star Len Bias on June 19, 1986, and it promptly enacted the Anti-Drug Abuse Act of 1986 ("ADAA"). The ADAA created mandatory minimum sentences and enhanced maximum sentences that have now become central features of our federal sentencing landscape. Despite the speed with which the ADAA was enacted, there is ample evidence from related congressional reports of the purpose of the new enhanced minimum and maximum penalties. 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. The Sentencing Commission's recent report to the Congress on Mandatory Minimum Penalties in the Federal Criminal Justice System provided the following useful summary of that evidence:
Floor statements delivered by members in support of the [ADAA] and a committee report on a predecessor bill suggest that Congress intended to create a two-tiered penalty structure for discrete categories of drug traffickers. Specifically, Congress intended to link the five-year
Senator Robert Byrd, then the Senate Minority Leader, summarized the intent behind the legislation:
A report issued by the House Judiciary Subcommittee on Crime following its consideration of a predecessor bill also provides evidence of Congress's intent to establish two tiered mandatory minimum penalties for serious and major traffickers. The Subcommittee determined that the five and ten-year mandatory minimum sentencing structure would encourage the Department of Justice to direct its "most intense focus" on "major traffickers" and "serious traffickers." "One of the major goals of this bill is to give greater direction to the DEA and the U.S. Attorneys on how to focus scarce law enforcement resources."
U.S. Sent'g Comm'n, Report to the Congress: Mandatory Minimum Penalties in the Federal Criminal Justice System 24 (2011) [hereinafter Mandatory Minimum Report] (second alteration in original) (quoting 132 Cong. Rec. 27,193-94 (Sept. 30, 1986); H.R.Rep. No. 99-845, pt. 1, at 11-12 (1986)) (internal footnotes omitted).
Most people would agree that the people who lead or manage drug-trafficking businesses deserve severe punishment. But right from the start Congress made a mistake, which is apparent in the statement of Senator Byrd quoted above: The severe sentences it mandated to punish specified roles in drug-trafficking offenses were 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. Instead, the 5-to-40 sentence enhancement is triggered by offenses involving 28 grams of crack, 100 grams of heroin, or 500 grams of cocaine. 21 U.S.C. § 841(b)(1)(B). And instead of hinging the ten-to-life sentence enhancement on the government's proof of "kingpin" or leadership status, Congress simply used larger drug quantities: 280 grams of crack,
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. However, as discussed below, 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.
DOJ uses mandatory minimum sentences without regard to their purpose. In fiscal year ("FY") 2011, over 74% of crack defendants faced a mandatory minimum, see U.S. Sent'g Comm'n, 2011 Sourcebook of Federal Sentencing Statistics tbl. 44 (2011) [hereinafter 2011 Sourcebook], yet only 5.4% of them occupied an aggravating role of leader or manager of a drug business, see id. tbl. 40.
Jamel Dossie is a young, small-time, street-level drug dealer's assistant. 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.
By the time Dossie began high school, he was already abusing drugs and alcohol, which got him into trouble regularly. Finally, at age 16, a family court judge ordered him out of his home and into a residential substance abuse treatment program at Phoenix House in the Bronx. Phoenix House reports that Dossie "displayed a poor attitude and unwillingness to engage in treatment" and that he made little academic or clinical progress before his discharge a year later. He never returned to school.
Dossie has a typical criminal history for a young man with his background. A car stop in 2008 led to a simple possession (of marijuana) conviction, and in 2010 he was convicted of a misdemeanor for possessing heroin and crack. His sentences for those misdemeanors were only seven days in custody and probation, respectively, but each conviction nevertheless earned Dossie a criminal history point, terminating any chance he had for safety-valve relief even without considering the two additional points he got for committing his offense while on probation. See 18 U.S.C. § 3553(f).
Dossie on four occasions was a go-between in hand-to-hand crack sales. On April 15, 2010, when Dossie was 20 years old, a confidential informant made a recorded phone call to him and asked about buying crack. Later that day, the informant met Dossie in Brooklyn. Dossie called an unidentified supplier, who arrived by Mercedes Benz ten minutes later. The informant gave $440 to Dossie — $420 for the person in the Mercedes and $20 for Dossie. Dossie took the money into the car. When he got out, the car left, and then Dossie handed the informant 9.4 grams of crack. On April 29, 2010, they did the same thing, except this time it was $860 ($820 for the supplier, $40 for Dossie) for 15.6 grams. This was less crack than the informant had asked for; Dossie explained that the supplier didn't have enough crack and returned $120 to the informant.
On June 10, 2010, they did it again, except this time the supplier of the crack stayed in a nearby store instead of a car, and it was $1,140 ($1,100 for the supplier and $40 for Dossie) for 29.6 grams. Finally, on November 9, 2010, Dossie transferred to the informant 33.5 grams of crack for $1,225. Dossie was arrested three and one-half months later, and he subsequently pled guilty to conspiring to distribute crack.
In sum, Dossie sold a total of 88.1 grams, or 3.1 ounces, of crack. His 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.
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. But he caught two bad breaks. 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.
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. 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.
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:
Sentencing Transcript at 7.
As this dialogue exemplifies, the use of these mandatory minimum provisions — which were utilized in over 74% of all crack cases in FY 2011, see 2011 Sourcebook tbl. 44 — results in a sentencing process that is far more objectionable and dangerous than the regime the Guidelines were created to replace. It is true that the pre-Guidelines regime was a "wasteland" characterized by unexplained, unguided, and unreviewed sentencing discretion, Marvin E. Frankel, Lawlessness in Sentencing, 41 U. Cin. L.Rev. 1, 54 (1972); see also Kate Stith and Jose A. Cabranes, Fear of Judging: Sentencing Guidelines in the Federal Courts 172 (1998) ("What made sentencing authority truly extraordinary... was not the broad discretion the judge exercised, but rather, the fact that his decision was virtually unreviewable on appeal."), but at least the discretion was exercised by a judge, whose mission was to impose a just sentence. The sentencing discretion in Dossie's case was exercised by one of the parties to the case, in furtherance of the undisclosed interests of law enforcement.
Moreover, even the harshest critics of the Guidelines acknowledge that one of their greatest accomplishments is transparency. Judges now must follow established procedures and explain the reasons for their sentences. Those procedures, together with the reasons for the sentence and the sentence itself, are all subject to appellate review. This 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.
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."
Coincidentally, the case that was called for sentencing immediately before Dossie's involved a closely analogous situation. The government contended that the defendant committed the extortion to which he had pled guilty as his way of participating in the Genovese crime family. I agreed that such a fact, if proven, would aggravate the sentence. But the defendant denied the allegation, so I scheduled a sentencing hearing to give the government the opportunity to prove it. See Minute Entry of Feb. 17, 2012, United States v. Caramanica, No. 11 Crim. 26, ECF No. 102. That's how our system is supposed to work; if facts material to the sentencing are in dispute, they get resolved after both sides have notice of them and an appropriate opportunity to be heard. Where the fact in dispute would aggravate the sentence, the government bears the burden of persuasion. These are basic tenets of due process.
Mandatory minimum sentencing strips all of this away. 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. There is no fairness in a system that allows that to happen.
Congress should get rid of mandatory minimum sentences generally, but no one expects that to happen soon. In the meantime, DOJ can and must play the leading role in bringing about needed sentencing reform.
Section 3B1.1 of the Sentencing Guidelines states:
Based on the defendant's role in the offense, increase the offense level as follows:
The four-level adjustment under subsection (a) for organizers and leaders of drug businesses that involve five or more people (including the defendant) or are "otherwise extensive" dovetails with Senator Byrd's description of the defendants who deserve the ten-year mandatory minimum as "kingpins" and "masterminds," as well as with the House committee report's description of them as "major traffickers." The three-level adjustment under subsection (b) for managers and supervisors in such organizations similarly parallels the "middle-level dealers" or "serious traffickers" at whom the five-year mandatory minimum was directed. Finally, the two-level adjustment under subsection (c) that applies to all management personnel (organizers, leaders, managers, and supervisors) when the drug business involves fewer than five people and is not otherwise extensive also captures the type of defendant for whom Congress intended the five-year mandatory minimum. Even the founder and leader of a drug business that involves fewer than five people and is not extensive is not the "kingpin" or "major trafficker" Congress had in mind. Thus by following my proposal, DOJ could ensure that its use of mandatory minimum charges hews closely to Congress's intentions.
My request is also consistent with the Attorney General Holder's policy on charging and sentencing. Under that policy, a prosecutor's charging decision "must always be made in the context of an individualized assessment of the extent to which particular charges fit the specific circumstances of the case." Memorandum from Eric H. Holder, Jr., U.S. Attorney Gen., to All Fed. Prosecutors 2 (May 19, 2010) (quoting U.S. Attorneys' Manual § 9-27.300) (internal quotation marks omitted). Furthermore, the policy provides that "[i]n
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. See Lanny A. Breuer, The Attorney General's Sentencing and Corrections Working Group: A Progress Report, Fed. Sent'g Rep., Dec. 2010, at 110, 112 ("We favor mandatory minimum sentences because such sentences remove dangerous offenders from society, ensure just punishment, and are an essential tool in gaining cooperation from members of violent street gangs and drug distribution networks."). I have previously written about the "enormous boost" mandatory minimum sentences give to federal law enforcement in its effort to advance investigations and obtain convictions by enlisting cooperation. John C. Jeffries, Jr. & John Gleeson, The Federalization of Organized Crime: Advantages of Federal Prosecution, 46 Hastings L.J. 1095, 1120 (1995). Federal prosecutors have gotten so inured to using severe sentences to leverage cooperation that, "[t]o an increasing degree, the Department has come to justify its requests for tougher sentencing rules, not on the ground that offenders actually deserve the higher sentences, but simply because the threat of the higher sentence provides a greater inducement for defendant cooperation." Frank O. Bowman, Mr. Madison Meets a Time Machine: The Political Science of Federal Sentencing Reform, 58 Stanford L.Rev. 235, 252 (2005).
An interest in pursuing cooperation justifies charging leaders and managers of drug enterprises with the corresponding mandatory minimum drug offense. Though deserving of stiff sentences, such defendants may properly be rewarded with a sentence below the mandatory minimum for providing substantial assistance to the government. See United States v. Ross, 719 F.2d 615, 623 (2d Cir.1983) (Friendly, J., concurring in part and dissenting in part) ("[T]he ability to offer leniency in return for cooperation is an indispensable tool of law enforcement."). The flip side is that a decision not to cooperate may effectively result in a harsher sentence, but a harsh sentence is what Congress intended for that type of drug trafficker.
That same interest in pursuing cooperation cannot justify charging a mandatory minimum when the defendant is neither a leader nor a manager. It is one thing to lower an otherwise appropriate sentence to reward a defendant's cooperation but quite another to threaten to impose an otherwise unjust sentence if he decides not to cooperate or tries but produces no law enforcement results. The latter situation essentially converts a refusal or inability to cooperate into an aggravating sentencing factor, in violation of a basic principle of our sentencing regime. See U.S.S.G. § 5K1.2 ("A defendant's refusal to assist in the investigation of other persons may not be considered as an aggravating sentencing factor.").
I have reason to believe that Attorney General Holder will be receptive to my request. In 2009 he made the following remarks to the Vera Institute of Justice:
Eric H. Holder, Jr., U.S. Attorney Gen., Keynote Address at Vera Institute of Justice (July 9, 2009).
Those remarks preceded the crime in this case, but they may as well have been about Dossie, a young drug-user whose nonviolent drug offense now seriously threatens his "claim to a future" principally because the government forced me to impose a five-year jail term on him. The Attorney General was right to compliment the forward-looking approach of the state authorities here in New York. If Dossie had been prosecuted by them instead of by federal authorities he would have been given an opportunity to avoid not only time in jail but a conviction as well. The success of the Drug Treatment Alternative to Prison Program ("DTAP") in Brooklyn over the past twenty years proves the efficacy of treating defendants like Dossie rather than subjecting them to prison terms. Graduates of DTAP "have a five-year posttreatment recidivism rate that is almost half the rate for comparable offenders who served time in prison." Charles J. Hynes, Kings Cnty. Dist. Attorney, Drug Treatment Alternative-to-Prison Twentieth Annual Report at Exec. Summ. (2011).
Indeed, many of the states that ventured into determinate (and more severe) sentencing at around the same time the federal system did have long since figured out how ineffective and expensive it is to reflexively incarcerate nonviolent, substance-abusing defendants like Dossie. As a former
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. And young men like Jamel Dossie end up losing out on what may be their last chance to save their future.
The only reason for the five-year sentence imposed on Dossie is that the law invoked by the prosecutor required it. It was not a just sentence. To avoid similar injustices in other cases, I respectfully urge the Attorney General to lead the way forward by altering DOJ's charging policies in the manner described above.
