David Pellerin/Caller-Times A wad of cash and what officers said might be a bag of black tar heroin are displayed after a drug bust. Mandatory sentencing means that unless a suspect cuts a deal with prosecutors, he is likely to serve a lengthy sentence, if convicted, no matter how non-violent he is. More Photos »

Drug sentencing minimums questioned

Many judges want more leeway in penalizing minor, non-violent traffickers

By Jeremy Schwartz

As in all federal drug sentencing, there will be little leeway for a judge to determine how many years Gabriel Rolando Rodriguez will spend in prison.

Rodriguez, who pleaded guilty to marijuana trafficking and money laundering charges in October 2000, faces a minimum of 10 years and a maximum of life in prison, pending any deals with prosecutors.

Depending on the amount of drugs a smuggler is convicted of distributing, he is assigned a corresponding sentencing level. For example, 30 kilos of cocaine corresponds to a Level 34 offense, equal to 12 years and seven months to 15 years and eight months in prison for a first offense. Prior criminal history can boost that prison time to as much as 27 years and three months.

However, anything over five kilos, or about 11 pounds, of powder cocaine triggers a 10-year mandatory minimum sentence without possibility of parole.

Copping a plea

"Our drug punishments are just very harsh and very rigid in the federal court system," said U.S. District Judge Hayden W. Head Jr. of Corpus Christi. "So there are a lot of people going to jail and going to jail for a long time."

But smugglers can avoid the mandatory minimum and lower their sentencing level by cooperating with prosecutors and pleading guilty.

"Our goal is to go up the ladder," said Assistant U.S. Attorney Robert Galvan, who says of the 400 federal cases in Corpus Christi last year, two-thirds were drug related.

The vast majority of drug cases at the Corpus Christi federal courthouse and around the nation end in a plea bargain, prosecutors say.

Like the informer in the Rodriguez case, each defendant is asked to give names in return for lighter sentencing. Rodriguez was taken down by one of his mules, or drug runners, who was stopped with 73 pounds of marijuana at the Sarita Border Patrol checkpoint.

Cooperation pays

By cooperating with prosecutors, but not necessarily agreeing to testify against others, a defendant can qualify for the so-called safety valve, worth a reduction of two levels and a way out of the mandatory minimum.

A defendant who agrees to testify against his former co-conspirators can win probation and a place in the witness protection program.

New sentencing guidelines instituted Nov. 1 allow judges to reduce a smuggler's level by two points if prosecutors determine the smuggler is just a mule, or courier in a larger organization.

Beyond these deals with prosecutors, judges have very little discretion in sentencing drug smugglers. They can't take into account the defendant's age, economic situation or family status and are bound by the higher mathematics of the sentencing table.

Guideline critics

U.S. District Judge Robert W. Gettleman in Chicago said the guidelines are far too severe, especially for the many young, non-violent offenders who are not major players in drug organizations.

"The penalties for drug dealing are totally out of proportion with the criminality," he said. "We are imposing sentences that should be reserved for the worst criminals."

The guidelines, instituted during the get-tough-on-drugs days of the Reagan administration, were meant to bring uniformity to the federal system as well as reassurance to an alarmed public, said Myrna Cintron, a juvenile justice professor at Prairie View A&M University.

"Legislators instituted the guidelines so we all look tough on crime, but the end result is we have an overcrowded prison system," Cintron said.

Judge's judgment

Some federal judges say they feel hamstrung by the guidelines and especially the mandatory minimums.

U.S. District Judge Janis Graham Jack of Corpus Christi said mandatory minimums fail to take into account why someone decided to traffic in drugs or what the impact of the crime was on society.

"Some of us would appreciate a little more discretion in applying the guidelines," she said.

Gettleman said that some offenders would be better served by treatment programs or boot camp - something that's rarely a possibility under the guidelines.

Different rules

The federal court system varies dramatically from the state court system, where juries and judges have much more leeway in assigning sentences.

A smuggler funneled into the state system could conceivably get probation from a sympathetic jury or judge for the same amount of drugs for which he could be sentenced to a mandatory 10 years in prison in federal court.

Further complicating the picture, there are no clear guidelines as to what lands a smuggler in federal or state court. In some cases, the determining factor is the weight of the drugs.

At the Falfurrias Border Patrol station, all powder cases and marijuana busts over 140 pounds are handled by the Drug Enforcement Administration and funneled into the federal system, Border Patrol agents say. Smaller cases land smugglers in the Brooks County Courthouse, where federal agents say punishments can be much lighter.

At the Sarita checkpoint, Border Patrol officials say the weight limit is generally 250 pounds of marijuana, but that sometimes DEA declines to take those cases.

Faith in the system

While both local federal judges - Jack and Head - said they see flaws in the nation's approach to fighting drugs, but they're not prepared to abandon it.

"I don't know what else you could do," Head said. "We can't stop what we're doing. I would hate to see how bad it would be if we stopped prosecuting, stopped trying to enforce that law."

Jack laments the fact that the flow of drugs seems unabated despite buildup of law enforcement in South Texas, and she said more attention needs to be focused on addressing the country's demand for drugs.

"At some point you have to address the use of drugs and that's not for the judiciary, I don't believe," she said.

Another view

Judge Jim Gray, a Republican Superior Court Judge in Orange, Calif., said he decided in 1992 that the current system was wrong, after marching countless non-violent drug offenders to heavy prison terms. The nation's drug problem, he said, has not gotten better despite harsh sentencing laws and the vast amounts of money used to fight trafficking.

"I just couldn't look at myself in the mirror," Gray said. "I'm a conservative and I thought my message would be heard. It's certainly not a professional benefit."

Gray said government regulation of currently illegal drugs would drop the nation's crime rate by 60 percent, as happened after the end of Prohibition of alcohol. Such a move would also free up the billions of dollars spent on fighting the drug war as well as end the massive incarceration rate for drug users.

Legalization

And while Gray said there would no doubt be an initial boom in the number of drug users after regulation, once the novelty and glamour wears off, the number of users would stabilize.

"Politicians are still able to use the trump card that we're waving the white flag, giving into drugs," he said. "They say they're doing it for the children. That's a crock. Our present system is putting children in harm's way. It's easier to find illegal drugs than a 6-pack of beer."

Judge Gilbert S. Merritt, a United States Court of Appeals Justice in Nashville, said that after 25 years as a judge, he favors experimenting with legalization in certain states or areas.

"I just have the general feeling that what we're doing here is running into the same problems as with Prohibition - but with longer sentences," he said.

Generation of addicts

Merritt said one of the main arguments against legalization - that we will create a new generation of addicts - deserves to be tested.

"You ask yourself, 'Could there be a better way?' It seems to me we haven't really tried anything else," he said.

Gray has outlined his argument in a book called "Why Our Drug Laws Have Failed and What We Can Do About It." His views were endorsed by 40 state and federal judges throughout the country, including Merritt. Like Gray, Merritt said a number of fellow judges question the current system.

"All you need to do is legitimize the discussion," Gray said. "Once you do that, the whole War on Drugs is over because it simply can't stand the scrutiny."

Contact Jeremy Schwartz at 886-3618 or schwartzj@caller.com

November 18, 2001