Pubdate: Tue,  6 Jan 2004
Source: San Francisco Chronicle (CA)
Copyright: 2004 Hearst Communications Inc.
Contact:  http://www.sfgate.com/chronicle/
Details: http://www.mapinc.org/media/388
Author: Debra J. Saunders

GOOD NEWS FOR BAD GUYS

SUNDAY NIGHT'S "60 Minutes" segment on federal mandatory-minimum drug
sentences -- "More Than They Deserve" -- touched on a facet of the
federal drug-sentencing system that might surprise many people.

No. 1: Laws that were supposed to put away the bad guys for long, hard
prison time often are being used to keep low-level offenders behind
bars for decades longer than drug kingpins.

Don't take my word for it. Former warden Joe Bogan stood near the
federal prison in Fort Worth that he once ran and told the TV camera,
"If you look back here in this prison, there are maybe 1,400 inmates,
and probably 700-800 of them could be out. And their sentences would
still be just. It would still hold them accountable for their criminal
conduct."

When I reached Bogan on his cell phone, I asked him how many drug
kingpins he thought were in federal prison today. Bogan answered, "My
estimation is of the 85,000 drug traffickers in the federal system,
there are probably fewer than 1 percent of whom you could call kingpins."

Some inmates serving long sentences are first-time offenders such as
Brenda Valencia, who was 19 years old when she was arrested for
driving a drug dealer to another dealer's home. The feds charged
Valencia for her role in a drug conspiracy. Her sentence: 12 1/2
years. The sentencing judge wrote that he found Valencia's sentence to
be "an outrage," but that the law forced him to apply it.

"What passes for a drug kingpin in 99 percent of the cases is nothing
more than a young man who can't even afford a lawyer when he's hauled
into court," U.S. District Court Judge Patrick Murphy of East St.
Louis told "60 Minutes." "I've seen very few drug kings."

No. 2: Prosecutors can reduce the sentences of drug kingpins who
testify against others. But underlings new to the drug business, who
can only implicate those who have implicated them, don't have as much
bargaining power.

As Bogan noted, if you are a "drug kingpin, then you have a lot of
information with which to bargain if you are caught."

No. 3: Conspiracy laws are not only used to punish drug lords for the
deals they direct; they also are used to incarcerate small fish for
the deals their higher-ups make. "The conspiracy amendment of 1988 was
designed to assure that kingpins could not escape prosecution for the
drug crimes they directed. Now, the Justice Department is misusing
that law to attribute to the lowest level operatives all of the
responsibilities of the kingpin," said Eric Sterling, who helped write
the 1986 federal drug sentencing law, then later created the Criminal
Justice Policy Foundation to work to atone for the law's excesses.

The worst part is that "60 Minutes" didn't touch on the most egregious
case in the federal system, that of Clarence Aaron, who is serving a
life sentence with no possibility of parole for a first-time,
nonviolent offense that netted him $1,500. "60 Minutes" executive
producer David Gelber confirmed that federal officials wouldn't allow
the show access to Aaron.

San Francisco U.S. Attorney Kevin Ryan said that there have been many
changes in the sentencing guidelines since Aaron was convicted,
including the "safety valve," which mitigates sentences for first-time
offenders. He's right, I'm glad to say, but until Washington reduces
the sentences of older cases, justice won't be done.

Ryan also said that his office doesn't focus on prosecuting small
fish. "We look for leaders of these (criminal) organizations. We are
not interested, typically, in the low-end individuals," Ryan noted. He
added that some notorious sentences didn't fit his understanding of
the sentencing guidelines.

The intent of the guidelines, Ryan noted, was "to make sure that
everyone is treated the same for their conduct." But there are too
many voices in and around the system who complain that the desire to
make judges issue sentences more equitably has moved the inequality to
prosecutors' offices. Where there are good prosecutors, there is
little problem. Where prosecutors are unreasonable, there is harsh
over-sentencing.

Whenever I write on federal mandatory minimums (and I've written
frequently on the case of Clarence Aaron), I receive e-mail from some
readers who believe in no mercy whatsoever for drug offenders, no
matter how minor the charge, because it makes them feel safer to know
that dealers are doing hard time. I feel safer too when high-level and
violent dealers do decades in prison. But if you feel safer because
first-time offenders are in for 12-1/2 years to eternity, it's because
you've bought into an illusion: It's like feeling safer because Al
Capone's accountant is doing more time than Capone.
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MAP posted-by: Terry Liittschwager