The Senate is considering an overhaul of the Federal prison system, called “First Step,” to include the early release of over 4000 Federal prisoners. Last week, the Department of Justice released an updated study from the Bureau of Justice Statistics (BJS) showing that 83 percent of prisoners released by states are re-arrested within nine years of their release. 44 percent of released state prisoners were arrested during the first year after release, 68 percent were arrested within three years, and 79 percent within six years. The BJS report serves to undermine the pending legislation. If it is budget trimming the Congress wants, maybe they ought to get rid of BJA. Either their reports carry no weight or nobody reads them. Cold-facts-on-recidivism-undermine-case-for-leniency-legislation.
It just occurred to me. Society could be going about this all wrong. Maybe the minimum mandatory sentence is not viewed as a deterrence, but a feature. What’s a young black guy to do? Here in the prime of his life, he is surrounded by baby’s mamas, squalling kids all under the age of three and no chance of sleeping in at least until they are all in school. What to do? Where to go, over the next five years for peace and quiet?
In Bexar County, it is almost impossible to get sent to prison, first rattle out of the box. The state justice system makes all sorts of promises, 2-10 in prison for Robbery, Burglary and Aggravated Assault but what do they deliver. Probation, deferred adjudication, pre-trial diversion. Once a felon does manage to catch the chain the new math kicks in. Five years, that is 1825 days by prison calculations equals 150 incarceration days, shit the kids won’t have made it to preschool.
What’s a felon to do? He can double up and go out and do it again. The trouble with doing another crime is if everything doesn’t go right the felon could find himself with a sucking chest wound or on the way to death row. Thank God for the Feds! Need a break for five years? Sell about two ounces of crack to your friendly local DEA agent. That sale should be good for five years. [Here is a little-known secret, you, the felon get to pick the prison. (Yes, there is fine print). That means the felon can be as close to home or as far away as need be].
But wait there is more! The Feds represent diversity. There are white-collar criminals, environmental wackos, tax evaders and members of Congress all doing time in the same place. It’s a thugs paradise! How much contention is going to occur when the leadership of the Aryan Brotherhood is a choice between a guy doing five years for having a Bald Eagle feather and a Massachusetts state legislator who stole coins from the courthouse copier for twenty years?
How do these poor unfortunates end up in Club Fed. Most police officers will never meet a Fed and never see the inside of a Federal Courthouse. This not true when it comes to police officers assigned to narcotics units. Even then, the vast majority of their cases will be filed at the state level. Once and a while, the status of the offender or the type of case will motivate a Federal Agent to “adopt” the case. That is to dismiss the state charges and refile it in Federal Court.
This type of action is seen in drug cases and firearms cases that involve previously involved convicted felons or the use of firearms to promote or protect a drug-related felony. Most states make it a felony for a felon to possess a firearm. Where the states and Feds differ is in sentencing.
A felon in possession of a firearm, in the Federal system, is guaranteed prison time. There are two ways to avoid it, death, or a not guilty verdict. The minimum mandatory sentence is five calendar years. No good time and no parole; just every day of five years. Once the five years are up, then they can start doing time on any other sentence that is pending. Most state charges end up running concurrently. That means that when the offender sentenced to three five year stints in prison, every day counts towards all three sentences.
What this means to the average felon is that a state sentence on three charges of five years on each translates to two years or less when good time, parole, and other incentives are thrown into the mix. The Federal felon looking at a drug charge along with a gun charge is looking at ten years in prison. Confronted with that reality, most felons, are willing to cut a deal to mitigate their time. Cooperation and a grateful government could knock substantial time off the drug sentence.
There was one other way a drug dealer could knock time off his sentence. The defendant could ask to be placed in a drug treatment program. Successful completion of the drug treatment program resulted in a reduction in sentence. The vast majority of drug offenders, that I dealt with were mid to upper-level crack cocaine dealers. They were all black males. Over a ten year time period, I asked every one of them two questions:
- Did they use crack cocaine?
- Would they sell dope to a white male?
Ninety-nine percent of the time I got the same answer. It was usually delivered with a look of disdain as if the dealer couldn’t believe that anybody stupid enough to ask those questions was smart enough to catch him. “Hell, No!”
There is always an exception. I found one guy that had used crack, in the past. He got clean while doing time on a state sentence and now was selling multiple ounces to kilo quantities of crack. All of the other dealers denied using crack cocaine and most deny using anything other than marijuana. With the exception of three dealers, two working for the third, they all stated that they would not deal with a “white boy.” Interestingly enough the three that did deal with a white boy (just one) also accepted his checks. I’ve never seen that before or since.
I had one crack dealer that put things in context. He sold a bunch of crack but did not use it. He made his own crack so he had a source for powder cocaine, but he didn’t use that. He didn’t smoke cigarettes and for the most part, didn’t drink. He would nurse a drink in a bar while socializing and occasionally smoke a joint if it was offered. Each time he went into the Federal system the pretrial services officers tried to enroll him in a drug treatment program. He refused, saying, “What I got you can’t treat.”
He went on to say that it was a matter of lifestyle. He pointed out that in the circles he traveled in, it was not unusual to find a dice game. It was also not unusual for the pot to exceed $50,000. To see the other players scooting right and left to make room for him and know he could cover the pot and not care whether he won or lost–that’s what he had.
As an example, one of my crack cocaine defendants was the leader organizer of his own crew. He dealt with the heads of two other crews, also engaged in selling crack cocaine. When he was arrested police found a kilo of cocaine (HCL) and a pistol side by side on a table. The weight of the dope, the gun, several previous deliveries he made to undercover officers and his criminal history all combined to put his mandatory minimum sentence at 40 years. He agreed to cooperate and provide testimony, as needed. His cooperation and testimony led to the conviction of 53 of 54 defendants. At sentencing, the judge stated how impressed he was with the defendant’s efforts and sentenced him to five years in prison. This is an extreme example in that the amount of time cut was so substantial.
As a local officer, my opening gambit was simple,”Do you know the difference between state time and federal time?” They all did. I controlled where the case would be filed, mostly true. If the offender cooperated with me, I would file the case in state court. If he didn’t, federal court. This is called forum shopping. I was shameless in using it. During my last five years at the Task Force, all of the cases I filed were filed in Federal Court.
There are other advantages to bringing a case to Federal Court. Once an Assistant United States Attorney (AUSA) agrees to take a case, he or she runs things. There is an interaction between the investigators and the AUSA that shows up in the end result. About 98% of federal cases end up with convictions. An inexperienced AUSA is one that performed successfully as a state prosecutor for a number of years. In the state system, cases are assigned to a court and prosecutors come and go. There is very little in the way of ownership in a case and little cooperation between the prosecutor and investigator. I was a cop for close to five years before I figured out that standing at adjacent urinals just before court, was not the pretrial conference contemplated in law school. In the Federal system an AUSA takes control of the case the moment he agrees to take it on.
The thing liberals and other assorted scum don’t want you to know is that the guidelines rarely fall squarely on the guilty with no modification of the final sentence. The personification of the guidelines is a chart (below).
The first step is to find what column governs that individual. A first-time offender, criminal history category I, and the offense category is a nine. Where the two lines cross is the minimum mandatory. Defendants can get a “downward departure” for accepting responsibility, (pleading guilty, even more, time if prior to indictment), providing information to help the government (Snitching). My spiel was, “I want you out of the dope business five years or fifteen don’t make a shit to me. Let’s get your time down to something you can do.”
Hollywood goes to exotic extremes to keep would be snitches and the targets separate. Not in San Antonio, they were all buddies on the outside they can all be friends on the inside. The reality is all of the defendants agreed to snitch. The guard would call out a name and announce that he was on the chain. This means he was going on a field trip. Everybody else in the POD would wonder why they weren’t invited. The answer would soon be supplied when the candidate announced, “I’m going over to the courthouse to snitch on your dope dealing asses.” They all waited their turn but didn’t retaliate.
I tried to give every suspect the opportunity to mitigate his sentence. I had one or two who were so bigoted they rejected everything I had to say. I had a conversation with one in the U.S.Marshall’s booking area. He had just received a fifteen-year sentence. I asked him, “Man is there anything I told you that didn’t come true? Did I lie to you? If you had done what I asked you, you would be doing half the time.”
He looked down at his leg irons, “I disbelieved you.”
My reply was, “You disbelieve my ass now?”
The ultimate irony regarding the minimum mandatory sentencing is that the original law change in the late eighties was at the urging of the black community. Now the pendulum is swinging back the other way. Has anybody bothered to point out that these 4000 offenders, largely black are going to go right back into the neighborhoods they terrorized in the first place?