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Federal Judge Criticizes Overuse of Mandatory Minimum Sentences

Recently, in United States v Dossie, 11-CR-237 JG, 2012 WL 1086516 (E.D.N.Y. 2012), Judge John Gleeson of the Eastern District of New York criticized the government’s policy of routinely seeking application of mandatory minimum sentences of imprisonment in crack cocaine cases where the defendant did not have a managerial or leadership role in the crime charged. Judge Gleeson, a former Assistant United States Attorney who successfully prosecuted John Gotti, called upon Attorney General Holder and federal prosecutors to invoke the mandatory minimum provisions of the Anti-Drug Abuse Act of 1986 only when the prosecutor intended to “prove by a preponderance of the evidence that the defendant was the kind of drug dealer for whom those penalties were enacted.”

Citing the United States Sentencing Commission’s 2011 Sourcebook of Federal Sentencing Statistics, Judge Gleeson noted that while 74% of crack defendants faced a mandatory minimum sentence of at least five years, only 5.4% were leaders or managers of a drug business. The defendant in this case was a young, drug-abusing, small-time, street-level drug dealer’s assistant, with a history of misdemeanor drug possession convictions.  He was charged with an offense carrying a five-year minimum mandatory sentence, not due to his role in the offense, but rather because it involved 3.1 ounces of crack cocaine. Had he the discretion to do so, Judge Gleeson would have considered imposing a lenient prison term or even allowing the defendant to enter the court’s Pretrial Opportunity Program, which was designed for nonviolent defendants with documented substance abuse problems. Instead, the judge concluded that the law required the imposition of a five-year prison sentence, which he stated was “not a just sentence.”

 

Appellate Advocacy – What Not To Do

Judge Richard Posner has written almost 40 books, most dealing with law and economics, and about 2,200 published opinions. A Reagan appointee, he has been on the 7th Circuit bench since 1981. He has been described as “probably the greatest living American jurist” in a website called “Project Posner”, created by his former law clerk, Timothy Wu, now a professor at Columbia Law School.

Posner recently wrote an opinion, castigating two lawyers, one of them by name, who had filed briefs in the 7th Circuit which ignored recent dispositive precedent relied upon by opposing counsel. The opinion, Gonzalez–Servin v. Ford Motor Co., 662 F.3d 931, 933 (7th Cir.2011), contains photographs of an ostrich hiding its head in the sand and a man in a brown suit (presumably a lawyer) acting similarly. Judge Posner wrote, “The ostrich is a noble animal, but not a proper model for an appellate advocate.” “The ‘ostrich-like tactic of pretending that potentially dispositive authority against a litigant’s contention does not exist is as unprofessional as it is pointless.’”

 

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