The Clinton Herald, Clinton, Iowa

August 29, 2013

U.S. judge blasts DOJ over drug sentence disparities

by RYAN J. FOLEY Associated Press
The Clinton Herald

---- — IOWA CITY — A federal judge in Iowa has sharply criticized the U.S. Department of Justice for creating massive drug sentencing disparities by failing to have a policy, until recently, advising prosecutors on when to double the prison time for repeat offenders.

In an Aug. 16 opinion drawing attention in legal circles, U.S. District Judge Mark Bennett described “a deeply disturbing, yet often replayed, shocking, dirty little secret of federal sentencing: the stunningly arbitrary application” of sentencing enhancements for repeat offenders.

Bennett issued the decision days after Attorney General Eric Holder announced guidelines telling prosecutors not to routinely seek the tougher penalties against low-level drug offenders. The change, which Bennett called welcome if long overdue, is part of a major shift in federal sentencing policies designed to imprison fewer nonviolent offenders.

Before then, prosecutors had little direction on when to bring charges with enhancements, which double the mandatory minimum sentences for offenders with prior felonies and make some eligible for life sentences, Bennett said.

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.

Bennett’s opinion was called “a must-read for all who follow the federal sentencing system,” by Ohio State professor Douglas Berman on his Sentencing Law and Policy blog.

Mary Price, general counsel at advocacy group Families Against Mandatory Minimums, praised Bennett for a remarkable use of his bully pulpit. She said the disparities documented in Bennett’s 75-page opinion were “absolutely stunning.” Congress should eliminate the enhancements because they are used by prosecutors “as tools to secure plea agreements or hammer people they don’t like” without oversight, she said.

But critics are likely to argue that giving judges more discretion will only lead to wider disparities.

As part of the nation’s drug war in the 1980s, Congress gave prosecutors sole discretion on when to seek the enhancements for those with past drug convictions — no matter how old — and they do not publicly explain their reasoning.

Bennett wrote that prosecutors’ decisions became “whimsical and arbitrary — something akin to the spin of a Wheel of Misfortune” where similar defendants sometimes received enhancements and sometimes did not.

He blasted DOJ’s “audacity of hypocrisy” for complaining about judge-created sentencing disparities while ignoring its responsibility for this problem.

“DOJ either had the data about application of ... enhancements and not only ignored it, but hid it from the public, or never bothered to gather such data, which was grossly negligent,” he wrote. “Either way, allowing this disparity to persist for so long was a terrible abuse of the public trust.”

The lack of a reasonable policy, he wrote, “added thousands of years of arbitrarily inflicted incarceration on drug defendants, most of whom are non-violent drug addicts.”

Bennett said he’d previously raised his concerns to DOJ and was blown off.

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.