Judge Blasts DOJ Over Drug Sentencing, Suggests Congressional Response

Post Date: October 21, 2013

(John Gramlich, CQ Roll Call) — A federal judge in New York has accused the Justice Department of systematically abusing its prosecutorial powers in drug cases and called on Congress to limit the department’s approach if Attorney General Eric H. Holder Jr. does not.

Judge John Gleeson, who was appointed to the Eastern District of New York by President Bill Clinton in 1994, wrote in a scathing Oct. 9 ruling that federal prosecutors regularly coerce defendants in drug cases into guilty pleas by threatening them with mandatory sentence enhancements, triggered if offenders have past felony drug convictions. Those sentence enhancements, he wrote, are “so excessively severe they take your breath away.”

“To coerce guilty pleas and sometimes to coerce cooperation as well, prosecutors routinely threaten ultra-harsh enhanced mandatory sentences that no one — not even the prosecutors themselves — thinks are appropriate,” Gleeson wrote in a drug trafficking case before him. “And to demonstrate to defendants generally that those threats are sincere, prosecutors insist on the imposition of the unjust punishments when the threatened defendants refuse to plead guilty.”

Gleeson said the practice is widespread and violates the will of Congress, which he said acted in 1970 to ensure that prosecutors would show discretion and “carefully cull from the large number of defendants with prior drug felony convictions the hardened, professional drug traffickers who should face recidivism enhancements upon conviction.”

Instead, Gleeson said, the DOJ has shown no such discretion and now seeks mandatory sentencing enhancements for many offenders, not just the most dangerous ones.

“There was no suggestion that Congress enacted [the law] so prosecutors could use their newfound discretion to trigger enhanced punishments as a tool to strong-arm federal defendants into pleading guilty or to punish those who exercise their right to a trial,” he wrote.

Debate Over New Policy

Gleeson, an avowed critic of mandatory sentencing laws who has delivered blunt legal opinions on previous occasions, praised Holder for being “out front on desperately needed reform” in sentencing, noting that the attorney general announced a policy in August that limits circumstances under which federal prosecutors may seek mandatory penalties on offenders. But Gleeson said the department’s new policy will do little to stop prosecutors from using tough sentences as leverage for guilty pleas.

The new DOJ policy calls on prosecutors not to seek sentencing enhancements for prior felony drug convictions “unless the defendant is involved in conduct that makes the case appropriate for severe sanctions,” Ellen Canale, a spokeswoman for the department, noted in a statement to CQ Roll Call.

“Federal prosecutors are instructed to pursue charges that fairly reflect the totality and seriousness of the defendant’s conduct and are consistent with the purposes of the federal criminal code,” Canale said. “Moreover, the attorney general recently instructed prosecutors not to file these enhancements unless the defendant is involved in conduct that makes the case appropriate for severe sanctions. The attorney general’s new policy seeks to ensure that these enhancements are reserved for serious, high-level, or violent drug traffickers.”

“The department agrees that the enhancements should not be used to coerce defendants,” Canale added.

But Gleeson argued in his 60-page ruling that the wording of the new policy “does nothing” to prevent a prosecutor from using past felonies as leverage to coerce defendants. He said Holder should take tougher steps, including “explicitly” barring the use of prior felony enhancements as a tool to produce guilty pleas; creating a new policy to ensure they are only used for serious offenders; and attempting to provide “realistic relief” for those already convicted through the use of such practices.

“If DOJ’s power to affect sentencing outcomes so dramatically through the filing of prior felony informations can’t be exercised properly,” he wrote, “Congress should take that power away.”

Debate in Congress

The opinion comes amid a growing debate in Congress over the use of mandatory sentencing policies, which according to critics have inflated the federal prison population and imposed excessively harsh penalties on offenders. Senate Judiciary Committee members from both parties are sponsoring proposals to give judges more flexibility to avoid imposing mandatory sentences.

But mandatory minimum policies also have their defenders, and Congress has repeatedly voted on a bipartisan basis in recent years to create new ones. Rep. Jim Sensenbrenner, a Wisconsin Republican and former Judiciary Committee chairman, said in an interview with CQ Roll Call earlier this year that he views mandatory minimum sentences as an important way to prevent prosecutors and defense attorneys from “shopping” for favorable judges who might hand down the kind of sentences they are seeking.

“If there isn’t a better way to stop judge-shopping, then I think we’re stuck with mandatory minimums,” Sensenbrenner said.