Home > civil liberties, criminal justice > Wanted: Prosecutorial discretion in federal drug cases

Wanted: Prosecutorial discretion in federal drug cases

An opinion handed down on March 31 by U.S. District Court Judge John Gleeson in the case of U.S. v  Dossie bemoans the practice of federal prosecutors filing mandatory minimum charges against obvious low-level drug offenders [h/t Sentencing Law and Policy]:

This case illustrates how mandatory minimum sentences in drug cases distort the sentencing process and mandate unjust sentences. […] They make opaque what that law was intended to make transparent. They strip criminal defendants of the due process rights we consider fundamental to our justice system. Most importantly, too many nonviolent, low-level, substance-abusing defendants . . . “lose their claim to a future” – to borrow a phrase from Attorney General Eric H. Holder, Jr. – because lengthy mandatory prison terms sweep reasonable, innovative, and promising alternatives to incarceration off the table at sentencing.

The defendant in the case, Jamel Dossie, was neither a criminal mastermind nor major player in the drug trafficking business; he was simply a small time associate for a low-level dealer. In fact, Dossie’s sole purpose for being in the drug business is a function of his personal drug use.

Yet, Dossie involved himself in the sale of enough drugs (that weren’t his and that he barely profited off of) to be on the receiving end of a five-year mandatory minimum sentence. In the opinion, Judge Gleeson writes that absent the mandatory minimum charge, he would sentence Dossie to a much less severe term.

The remarkable thing about Dossie’s case and the sentence he received is that there’s nothing remarkable about it at all. Just scroll through this list provided by Families Against Mandatory Minimums for stories of a myriad of other defendants sentenced under similar circumstances.

Dossie, and so many others like him, suffer from what Judge Gleeson calls “unjust sentences” due to the role of prosecutorial discretion in decisions to file mandatory minimum charges against drug offenders, essentially nullifying any notion of judicial discretion in sentencing defendants. Judge Gleeson, hands tied by the mandatory minimum charge, described Dossie’s sentencing proceeding as thus having, “all the solemnity of a driver’s license renewal and took a small fraction of the time.”

The Anti-Drug Abuse Act of 1986 (the Act), passed by congress and codified at 21 U.S.C. § 841, established the mandatory minimum penalties that are now a hallmark of federal drug cases. But the vast majority of the way these mandatory minimum charges are used for drug crimes is in total contravention to the original purpose of the legislation.

As a U.S. Sentencing Commission report states, in passing the Act, “Congress intended to create a two-tiered penalty structure for discrete categories of drug traffickers. Specifically, Congress intended to link the five-year mandatory minimum penalties to what some called ‘serious’ traffickers and the ten- year mandatory minimum penalties to ‘major’ traffickers.” Basically, the Act was meant to target the management of drug dealing syndicates, mid and high-level dealers, as well as the drug “kingpins” atop the organizations.

The problem is the Act seeks to determine the function of dealers in a drug business solely by the quantity of drugs a defendant is implicated with (mandatory sentences increase as the quantity of drugs increase), rather than specific roles individual dealers play within a criminal organization.

By passing a law simply focused on drug quantity in such broad language and with no requirement to prove a defendants specific role in a drug dealing business, contra congressional intent, these punitive mandatory sentences can be, and mostly are, applied to anyone arrested with the specified amount of drugs to trigger the mandatory sentence – regardless of the defendant’s role within a drug organization.

This is a significant flaw in the legislation; using drug quantity as a determiner is ineffective because high-level individuals at the top of drug dealing enterprises rarely ever deal, handle, or are even in the same room as large quantities of drugs – as the actual day-to-day dealing of drugs is typically delegated to low-level street dealers.

As Judge Gleeson points out, the problem is evidenced by the fact that in 2011, “over 74% of crack defendants faced a mandatory minimum, . . . yet only 5.4% occupied an aggravating role of leader or manager of a drug business . . . .” It turns out, “that the overwhelming majority of crack defendants who feel the pain of mandatory prison terms are not the criminals Congress had in mind in creating those penalties.”

So what we get is situations like Dossie’s, where those unnecessarily charged with mandatory sentences are mostly drug users, occupying the low rungs of drug dealing organizations simply because of their use.

However, more problematic than the legislation’s reliance on drug quantity to trigger mandatory sentences is the discretion, or lack thereof, in which federal prosecutors file mandatory minimum charges for drug crimes. Just because the amount of drugs implicated in a case meets a mandatory minimum threshold, doesn’t mean that such a charge is warranted.

But this shouldn’t be the least bit surprising, as there is a strong public choice aspect to this behavior. Prosecutors, by and large, seek to gain as many convictions as possible with sentences as lengthy as possible in order to maintain and embody a “tough on crime” persona – regardless if justice is truly being served or not.

Undoubtedly, the vast majority of the public is not sympathetic to criminal defendants, let alone those charged with drug offenses. There is exceedingly little political and social capital to be squandered by vigorously prosecuting drug users and small time dealers under federal mandatory minimum laws. On the other hand, there is potentially much to lose by not doing so, as federal prosecutors may find themselves unemployed, sliding down the political ladder, and/or publicly condemned and vilified.

The preeminent criminal justice reporter Radley Balko pointed out numerous times that despite the benevolent intentions some legislators may have, when prosecutors are the recipients of any type of overly broad criminal laws, more often than not they’ll be used to prove their law and order bona fides – often times in completely inappropriate circumstances.

And now that the Supreme Court expanded absolute immunity for prosecutors, there is now even less risk than ever for overreaching. As Balko puts it, “[a]ll the incentives for prosecutors right now point toward winning convictions.” And many seem to be attempting to do just that, justice be damned.

Cross-posted from

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  1. Michael Slater
    April 13, 2012 at 8:43 am

    Our prosecutorial system is flawed at its foundation when Distric Attornies are publicly elected officials who seemingly have no choice but to run on “tough on crime” platforms which at their core are highlighted by conviction records, warranted or not, proper or not, logical & rational or not. Justice be dammed.


  1. April 12, 2012 at 10:18 am
  2. April 27, 2012 at 1:29 am
  3. April 25, 2013 at 11:19 pm

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