Sentences for Federal Drug Crimes: Why Does the U.S. lead the World in Prison Sentences?

April 28, 2008 by Paul Kish

An article in yesterday's New York Times examines federal drug sentences as part of the overall picture which shows that the U.S. leads the world in the number of people incarcerated, as well as in the length of those sentences. Part of the article looks at statistics showing how federal criminal sentences have exploded in the past two decades. Around 1980 there were 40,000 people serving time for federal crimes. That figure has expanded to almost 500,000 federal prisoners at the present time. The article points out that more than half of the people doing federal time were convicted of drug crimes. Here is a little background on how this amazing expansion of federal drug prisoners came to be.

When I was just out of law school in the early 1980's, I worked for a couple of federal judges as a law clerk. It's a great job where recent students help the judge and also get to see the legal system up close and in action. I always watched the criminal trials with interest. The drug cases tended to be prosecutions of large-scale dealers, importers and middle men. Cocaine seemed to be the drug that federal prosecutors focused upon.

I remember one case involving a pretty big dealer where the judge for whom I worked imposed what I thought was a rather harsh sentence, 15 years in prison. Later, the judge laughed when he explained that the guy would be out in under 5 years, maybe less. The reason was the old parole system used by the feds really only required the person to do about one-third of the actual sentence.

By the middle of the 1980's, Congress and the Reagan Administration were going full bore in their oddly misnamed "War on Drugs." Congress created mandatory minimum sentences, and in 1984, the extremely unfortunate Federal Sentencing Guidelines. Furthermore, the Reagan Administration convinced Congress to fund huge increases for the DEA and the Department of Justice. All those new DEA agents and young prosecutors needed to do something to justify their salaries, so lo and behold, the number of drug prosecutions shot skyward. However, going after drug kingpins is long and laborious work. By the 1990's, we were mostly seeing street-level dealers getting prosecuted in federal court. Only rarely have I seen a really big federal drug case in the past 15 years or so.

However, while the dealers are smaller, the sentences are now much longer. The mandatory minimum sentences, along with the ridiculous 100:1 ratio of punishments for crack versus powder cocaine, resulted in amazingly unjust sentences. Remember the 15 to serve 5 sentence imposed by my old judge on the high-level dealer? Nowadays, the kid who makes a couple of hundred dollars a week selling will get 10 years to serve, with no parole and no hope of early release (except for a little off for good behavior.) Other sentences likewise are far longer. I had a case a couple of years ago where my client had two prior drug convictions. This man was an addict, and a young drug dealer convinced the addict to carry a two ounce package across the street. The combination of the mandatory minimums along with some amazingly harsh rules for repeat offenders meant that this man was required to serve 30 years! And this for a low-level addict merely carrying the drugs in the hope of earning a small hit to fee his habit!

Our nation now incarcerates more people for drug crimes than any other country on earth. This has been an amazing waste of time, money, and most importantly, human lives. Lawyers who recognize how we came to this point in our nation's history need to tell the sad story of how all this came about. Only when the people realize how unproductive this all is can we hope to bring some sanity back to this aspect of our criminal justice system.

Federal White Collar Fraud Conviction Reversed on Appeal: Pattern Jury Instruction on Fraud Held to be Deficient

April 10, 2008 by Paul Kish

A federal conviction in a white collar fraud prosecution out of Alabama was recently reversed by the United States Court of Appeals for the Eleventh Circuit. This case could be a very important decision for many people who have faced federal fraud charges. The decision in United States v. Svete might even impact some cases where the defendant was convicted years ago.

Here's what happened. Mr. Svete and another man were prosecuted for a supposed fraud involving the "viaticals" component of the insurance business. One of the charges alleged that the defendants committed federal mail fraud, which requires proof of "a scheme to defraud." About ten years ago, the Eleventh Circuit Court of Appeals issued a very sensible ruling, pointing out that not all people who lose money in an investment are victims of mail fraud. Instead, this earlier decision explained that before a person could be convicted of federal fraud charges, there had to be proof that the defendant concocted a scheme "reasonably calculated to deceive persons of ordinary prudence and comprehension." In other words, just because some people lose money does not make the person who got their money a criminal, if the victims did not use "ordinary prudence and comprehension."

Now, here's the important part of the Svete case. Like most courts, the Eleventh Circuit puts out a standard set of Pattern Jury Instructions that judges and lawyers can use during a trial. A judge who decides to use one of these Pattern Instructions to tell a jury about a particular point of law will rarely get reversed on appeal. However, the Pattern Instruction in the Eleventh Circuit does not include the language about the need for the prosecutor to prove that a scheme was "reasonably calculated to deceive persons of ordinary prudence and comprehension." Because this language is good law, and because the Pattern Instruction does not have such language, the Court reversed the fraud convictions in the Svete case.

This might be an important ruling, for several reasons. First, there are several other Pattern Instructions used in the Eleventh Circuit dealing with other varieties of fraud, and none of these other instructions contain the crucial language that led to the reversal in the Svete decision. Also, this problem might even affect cases that have already been decided. Careful lawyers who handle federal fraud cases need to look over their current and previous cases to see if this recent decision might help their clients.

At our firm, we do quite a few federal appeals. This case is yet one more example showing why lawyers need to try and keep current with recent changes in the law.

Creative Lawyering in Atlanta, Georgia: The Deal for "T.I." in Federal Court

April 9, 2008 by Paul Kish

The recent deal brokered by the lawyers representing the rapper "T.I." here in Atlanta is but one more example of how creative lawyers can sometimes put together a deal that works out for both sides. The high profile nature of the case obscures the bigger point: when qualified and creative defense attorneys work with open-minded prosecutors, sometimes there can be a deal that is in everyone's best interest.

The Internet is full of stories about how the rapper T.I. was caught in a federal gun investigation just outside a music awards ceremony here in Atlanta. T.I. is a veritable cash cow, making millions for himself, his label and assorted hangers-on. He also is a quite talented young man, if his performance in the movie "American Gangster" is any indication. Unfortunately, T.I. also has a bit of a checkered past, replete with some felony convictions. According to press reports, along with my personal conversations with some of the lawyers and judges involved in the case, it appears that T.I.'s bodyguard got himself into trouble, and then became an informant against his boss. The feds claim that T.I. had the bodyguard purchased numerous weapons, some of which were allegedly stored in a safe at T.I.'s house.

Most defendants in this situation would be facing somewhere between 4 and 6 years in custody. However, T.I.'s defense team came up with a deal in which their client does less than a year in custody, but he has to go out and spend at least 1000 hours talking to at-risk young people about the dangers of guns and violence. One of the truly creative parts of the deal is that it requires that T.I. perform this community service BEFORE he goes to jail, and if he fails in any way, he could be facing more than 5 years in custody.

My law partner Carl Lietz was recently quoted in the press as describing this as an '"unprecedented" deal, and in many ways, he is right. Unfortunately, far too few prosecutors are willing to look beyond the rigid statutes and guidelines that sometimes govern criminal cases. It is important to praise prosecutors who take a chance on a defendant, even if the defendant is a high profile person with lots of money. I was a public defender for over 20 years, and I know my clients rarely got deals like this. But instead of complaining, I say we should slap the prosecutors on the back, and encourage them to be equally creative and willing to take a chance on the next kid who comes along after having done some stupid crime.