Federal Judge Knocks Arbitrary Drug Sentencing Enhancements

Mandatory minimums can get even nastier for repeat offenses, if the prosecutor wants to push it


Those scales are way too small to measure the amount of "justice" drug defendants are sentenced to.
Credit: © Vasabii |

Attorney General Eric Holder is years behind Federal Judge Mark Bennett. Holder announced earlier in the month a general plan to reduce the mass federal incarceration of those charged with drug crimes and to find ways to bypass mandatory minimum sentencing if possible, sometimes by simply underreporting the amount of drugs found in some cases.

Bennett, though, has been vocalizing problems with federal mandatory minimums since at least 2009 up in his court, serving the Northern District of Iowa. Starting in 2009, Bennett ignored federal guidelines and would sentence those convicted of crack cocaine offenses the same as he would those who had been convicted of powdered cocaine. That was a year before Congress finally changed the law, which had treated crack cocaine possession much, much more harshly than powdered cocaine.

In 2012 in The Nation, Bennett wrote a first-person account of his experiences as a judge sentencing poor drug addicts to prison for terms over which he had absolutely no control:

Crack defendants are almost always poor African-Americans. Meth defendants are generally lower-income whites. More than 80 percent of the 4,546 meth defendants sentenced in federal courts in 2010 received a mandatory minimum sentence. These small-time addicts are apprehended not through high-tech wiretaps or sophisticated undercover stings but by common traffic stops for things like nonfunctioning taillights. Or they're caught in a search of the logs at a local Walmart to see who is buying unusually large amounts of nonprescription cold medicine. They are the low-hanging fruit of the drug war. Other than their crippling meth addiction, they are very much like the folks I grew up with. Virtually all are charged with federal drug trafficking conspiracies—which sounds ominous but is based on something as simple as two people agreeing to purchase pseudoephedrine and cook it into meth. They don't even have to succeed.

I recently sentenced a group of more than twenty defendants on meth trafficking conspiracy charges. All of them pled guilty. Eighteen were "pill smurfers," as federal prosecutors put it, meaning their role amounted to regularly buying and delivering cold medicine to meth cookers in exchange for very small, low-grade quantities to feed their severe addictions. Most were unemployed or underemployed. Several were single mothers. They did not sell or directly distribute meth; there were no hoards of cash, guns or countersurveillance equipment. Yet all of them faced mandatory minimum sentences of sixty or 120 months. One meth-addicted mother faced a 240-month sentence because a prior meth conviction in county court doubled her mandatory minimum. She will likely serve all twenty years; in the federal system, there is no parole, and one serves an entire sentence minus a maximum of a 15 percent reduction rewarded for "good time."

He also appeared in drug war documentary The House I Live In.

Today the Associated Press got their hands on a report by Bennett written earlier this month blasting the Department of Justice over the way those doubled mandatory minimum sentences are handled. Apparently there are no rules or policies telling prosecutors when they were supposed to request those enhanced sentences. As a result, predictably unpredictable applications:

Bennett, a Clinton appointee, said he could discern no pattern for how prosecutors applied the enhancements in his Sioux City courtroom over the last 20 years. One probation official told him there was "no rhyme or reason."

Bennett obtained and analyzed the only data known to exist on the issue from the U.S. Sentencing Commission, which he said revealed a "jaw-dropping, shocking disparity" in how enhancements are applied across the nation's 94 U.S. Attorney's offices.

The data covers 14,000 cases nationally in 2006, 2008 and 2009. Bennett's analysis revealed that prosecutors in both of Iowa's districts sought enhancements in four out of five cases in which an offender was eligible, among the highest rates in the nation. But prosecutors in eight other districts never sought enhancements and many others only rarely did. In all, an eligible offender received the enhancement 26 percent of the time.

A repeat offender caught in Bennett's district was 2,532 times more likely to face a doubled sentence than one arrested a mile away across the Nebraska border, he wrote. Those prosecuted in the eastern district of Tennessee were nearly 4,000 times more likely to receive an enhancement than those caught in the state's western district, he added.

The circumstances behind Bennett putting forth this opinion also may give us some insight as to why Holder's new guidance is so important:

DOJ spokeswoman Ellen Canale noted Wednesday that Bennett praised Holder's new guidance telling prosecutors they should not seek enhancements unless a defendant's conduct demands "severe sanctions" — such as if they were leaders of a conspiracy or violent.

Bennett's opinion came as he sentenced an Iowa man to two years in prison on a cocaine distribution charge. Prosecutors sought the enhancement — doubling the minimum term to 10 years — even though he'd cooperated and had a single prior offense from 17 years ago. Bennett ruled the man was among the few offenders who are eligible for a downward departure, so the minimum didn't apply.

The sentencing came around the same time as Holder's new policies were announced, so the prosecution's request was probably not in defiance of Holder's orders. It is, however, a notable example of how harsh prosecutors are on drug crimes even when given discretion. It should make us all wonder whether Holder's new rules will actually be fairly applied by prosecutors or whether we'll have to hope for more judges like Bennett.

Bennett's full comments may be read here (pdf). Beginning on page 43, he absolutely blasts the Department of Justice for worrying vaguely about "sentencing disparities" while ignoring its own role in the problem.