I promised a three part article on my take on the debate regarding mandatory minimums in the Federal system.  I got distracted, so here it is, late.  As a narcotics investigator I was a shameless forum shopper and filed my cases in Federal Court every chance I got.  During the time I was active the Western District of Texas, San Antonio Divison had the sixth highest prosecution of crack cocaine offenders in the country.  What is all the more suprising there were only three cops 1 DEA, 1 Task Force and 1 San Antonio Police (patrol officer) who were consistently bringing cases to the United States Attorney.  We filed the cases in Federal Court because of the mandatory minimums.

But there is another side of the coin.  As soon as we slapped the handcuffs on a suspect, before we had a commitment from the United States Attorney, after we had a commitment, on the ride down to the United States Marshal’s office and right up until we walked the defendant into the magistrate’s courtroom we were trying to lessen the impact of the mandatory minimums.

The name of the game in working dope is information.  With an onsight arrest, one not dictated by a warrant, the arresting officer can file the case where he is able.  Ninety-nine percent of the time that is going to be with the local District Attorney in the appropriate state court.  In some crimes the state and federal system each have an interest in prosecution, bank robbery, some drug cases, kiddie porn and some weapons violations come to mind.

In Bexar County probation is always on the table, no matter how egregious the offense. Probation as a threat does not motivate suspects to cooperate.  A choice between probation and ten years in prison does motivate a suspect.  I was not making promises just explaining how the two systems worked and what, based on my experience, was a likely outcome. Occasionally I was able to get through to a suspect and based on his cooperation filed the case in state court. Invariably the state system gave the defendant probation, with no input from me.

For those defendants that were slow on the uptake they went into the Federal system. Although they declined an initial opportunity to cooperate I would tell the defendant and his attorney that cooperation was still an option.  At this point the Assitant United States Attorney (AUSA) is the guy in charge.  The AUSA would make the charging decision and prepare the indictment.

Cooperation prior to indictment, could forestall an additional gun charge.  This is significant because time on the gun charge only starts running after other sentences are complete.  Typically a federal prisoner does 28 days for every thirty of his sentence. A typical dope sentence might be ten years for possession with intent to distribute and ten years for conspiracy to distribute cocaine base.  Both sentences are served at the same time and with a mandatory drug program the defendant will be out in about eight years.  If the gun charge is added that is an additional five years and that sentence begins on the day the drug sentence ends.  This means the defendant is looking at thirteen years.  There is no “good time” on a gun charge the defendant does five calendar years. So a defendant has the ability to affect his sentence.

Assuming the defendant is still recalcetrant, he still has an opportunity to mitigate his sentence.  At this point, everybody involved is dealing with hard numbers.  Pretrial services has done their interview and calculated what the defendant’s offender catagory is.  This is a point system based on the defendant’s prior criminal history. It plugs into a chart, match the row containing the offender catagory with the column that establishes the sentence for the offense charged and where the two intersect is the punishment that can be expected.

If the defendant pleads guilty prior to indictment he can move the numbers in his favor.  If he pleads guilty prior to trial he can move the numbers, although not as much.  If the defendant accepts responsibility and agrees to cooperate with the government he can move the numbers further.  If the defendant’s information leads to additional evidence and defendants and he agrees to testify, then he can move the numbers substantialy.  This is called a “downward departure.” I watched one defendant move his mandatory minimum from forty years to five based on his cooperation.

The vast majority of defendants, in the Federal system, plead guilty and to one degree or another cooperate with the government.  Almost all of them receive a benefit at sentencing.  The fact that defendants cooperate is acknowledged by everybody.  In one crack conspiracy prosecution I was involved with the five principle codefendants were all housed in the same pod (Cell block).  As each codefendant left to meet with us to debrief, they would turn to the leader/organizer and say, “I’m going to snitch your ass off, just trying to get my time down to something I can do.”

I would be interested to see how many of these victimized defendants are actually doing max time based on the guidelines mass releases and mandatory minimums.  As a practical matter I would guess that most offenders are not doing time according to what is set out on the guidelines.  I think a lot of what the complaints are about is “buyers remorse”.  Almost all defendants are sure they are going to beat the rap.  They are convinced that they are incarcerated because the system cheated. If the system didn’t cheat it is because the cops, prosecutor or judge had it in for them. Are you seeing a trend here?  It is never about what they did only what is being done to them.  Once their defense attorney convinces them that none of those issues are going to play, they are faced with the seemingly immovable object, the guidelines.  They cop their plea and then listen to a U.S. District Judge bitch about the guidelines at their sentencing.  See the system was out to get them.