Understanding federal sentencing

Support for federal mandatory minimum drug sentences dwindles each day, but there are still some holdouts, including the Senate Judiciary Committee chairman, our own Chuck Grassley.

The dark side of mandatory minimum sentences is encapsulated in the much-quoted concept, 'If all you have is a hammer, everything looks like a nail.” For too long, federal mandatory minimum drug sentences haven't been hammers - they've been sledgehammers. The nails are drug offenders - more than 20,000 of them sentenced in federal courts each year - and mandatory minimum sentences treat all of them like major dealers and kingpins, ignoring their role in the crime, profit from the drug activity, or need for drug or mental health treatment.

Mandatory minimum drug sentences are too often utilized as a blunt instrument when a more refined approach can get just results and still generate guilty pleas and cooperation. I was a federal prosecutor here in Iowa in the late 1970s, at a time when there were no federal mandatory minimum drug sentences. Even without those sentences, I still got defendants to plead guilty at a high rate and turn in other lawbreakers. Today, prosecutors still have the same options I had back then and don't need such lengthy mandatory minimum drug sentences.

Prosecutors can levy more charges against a defendant who won't play ball. The federal sentencing guidelines also allow prosecutors to increase sentences for everything from gun possession to narcoterrorism. Today's mandatory minimum prison terms of five, 10, 20 years, or even life are just the starting point for punishment - because they're so high, they often lead to overkill.

Today, 97 percent of all defendants plead guilty rather than exercise their constitutional right to a jury trial. How high must the plea rate get for prosecutors to feel that mandatory minimum sentences are unnecessary? Mandatory minimum drug sentences undoubtedly do convince people to plead guilty. I agree with Senator Grassley on that, and indeed have utilized cooperation for clients to avoid these minimums. But whether they help prosecutors 'get the bad guys,” as Senator Grassley says, is debatable.

According to U.S. Sentencing Commission data, the federal drug offenders most likely to cooperate and turn others in are exactly the kinds of people Congress created our long mandatory minimum sentences for: high-level drug traffickers, importers, and organizers, leaders and managers of drug rings. It's a counterintuitive result: the people with the names and intel prosecutors want are the people running the operation, not the underlings - and they often get a break.

Street-level drug sellers are more likely to get a mandatory minimum drug sentence than a high-level drug importer - partly because they don't know anything of value to give to the prosecutor in exchange for a shorter sentence.

The sentencing reform legislation pending in Congress right now, the Smarter Sentencing Act, is actually a minor reform. It doesn't eliminate mandatory minimum sentences, but merely reduces them. The bill doesn't take away other tools prosecutors have to get longer sentences for more serious offenders, and it doesn't reduce sentences for drug crimes that involve violence or importation. The bill's shorter mandatory minimum sentences are still just a starting place, in other words - but a fairer, more reasonable, and dramatically less expensive one.

Prison cells aren't plentiful or cheap. The Willie Horton-era War on Crime of the 1980s made lawmakers addicted to creating longer and longer sentences. This war is waged predominantly on minorities and the poor, including many Iowans.

The answer isn't more and longer mandatory minimum sentences, but fewer and more rational ones. Senator Grassley should embrace the opportunity to lead the country in that direction.

' Keith Uhl is a former federal prosecutor and current defense attorney in Des Moines. He helped direct Senator Chuck Grassley's first campaign for the U.S. Senate. Comments: uhllaw@aol.com