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I was told to pick a topic. Unfortunately, no one wants to talk about anything but the elections. I’m not supposed to talk politics, so anything else I could come up with at this moment would be irrelevant. But since no one is listening anyway, I’ll talk about another, mostly political, issue as it impacts the federal courts: drug laws and sentencing guidelines. It is a view from another angle. A recent case says more about the points I wish to make than any abstract reading and analysis of statutes and guidelines. I have concluded the case, and the government has appealed the sentence. Undoubtedly, the defendant will cross-appeal the conviction. Both sides will have substantial points on appeal. This case was made by county police officers in a low-income Fort Lauderdale neighborhood during what are called “buy-bust” sting operations. The operation was aimed at users and small street dealers in crack cocaine and marijuana. In these sorts of operations, local police use informants who are facing prosecution or who have already been convicted for the same type of offenses to make purchases from known or suspected sellers. The informants expect to have their own sentences reduced in exchange for delivering up someone else. In most cases the money for the purchases belongs to the police. Sometimes the police are the owners of the drugs being offered for sale. These transactions range in dollar size from $20 to $2,000 and usually take place on the streets or in parking lots. Seldom are arrests made on the spot. Routinely, the bust or arrest is made days later in predawn house raids by special local police units. Because federal drug laws are far more severe in punishment than state laws, the cases are routinely packaged and handed over to the U.S. attorney’s office for prosecution. (I would note here that I have been sitting in Fort Lauderdale for more than three and one-half years and, to my recollection, the defendants in every one of the many cases sent by local police over for prosecution by the federal government have been young black males and females. I’ll come back to this point.) One of the most memorable of the defendants was a 21-year-old woman named Christy, who lived with a street dealer, the father of her infant daughter. When he was away, she would give $20 or $40 packets of cocaine to her boyfriend’s customers and take the money. She did this seven or eight times over about a year, taking in about $2,500. When the bust was finally made, she was charged with trafficking in narcotics; the small deliveries were aggregated to make a case sufficiently substantial to merit federal interest. Christy pleaded guilty but would not cooperate in the prosecution of her child’s father. For that reason she could not earn a sentence reduction for substantial cooperation. I painfully imposed the lowest sentence allowed by the guidelines — 11 years of incarceration — after inquiring as to whom was going to raise her child. To get the sentence down to 11 years, I had to make a finding that no firearm was involved. She had been charged with armed trafficking because during the police raid a gun had been found in some remote part of the house. The defendant in the most recent case, whom I will call Smith, was one of several people arrested in another operation. He was 25 years old at the time and an admitted crack addict. He came to the court with seven prior arrests for crack cocaine possession. Smith’s chances of prevailing at trial appeared slim so, in order to avoid a time-consuming trial, I suggested that the government make him a reasonable plea offer. Smith was not the target of the police investigation and buy-bust operation. He had only stumbled into the trap. The owner of the drugs was suspicious of the purchaser, who was a police informant. Smith volunteered to help the drug owner sell to the informant because the informant was his cousin. The owner accepted Smith’s offer of assistance and promised him crack cocaine for his personal use in return. Smith negotiated with the informant as instructed, delivered the substance, and accepted the government’s $1,875 which he delivered to the owner. Everyone else involved in the related transactions had their sentences reduced substantially or were not charged at all because of their cooperation with local police. But Smith went to trial because he had no useful information to give police. The government offered a long sentence in exchange for a plea because of his prior convictions, which Smith found unacceptable. Here, I will digress for a moment. On some days, federal courts are not that different from state circuit courts. The defendants were investigated and arrested by state officers; the witnesses are mostly local police officers, along with informants who revolve in and out of federal courts and prisons pursuant to cooperation agreements with local police. The only explanation is that federal drug laws give local police officers a sledgehammer enforcement tool which, as a practical matter, is immune from scrutiny by the federal judiciary. In order to bring the Smith case on for a three-day trial, I had to postpone the trials of two federal civil cases — one brought under the Fair Labor Standards Act and the other a Title VII claim for age and gender discrimination. After the trial and conviction, it was necessary to schedule a sentencing hearing. Smith’s guideline sentence was life imprisonment. The prosecutor, or more likely the local police, was firmly opposed to anything less. Let me place this sentence into perspective. If Smith had been convicted of second-degree murder, with one prior conviction of either a crime of violence or a drug offense, the base offense level for sentencing purposes would have been less. Under state laws the maximum sentence, I believe, would have been 15 years. After another half-day in a sentencing hearing, I departed downward to impose a sentence of 10 years, relying on provisions in the sentencing guidelines and case law. The factors I considered were his chronic addiction, which began at age 15, and a documented childhood history of mental or emotional disability. Treatment was discontinued for unknown reasons. He dropped out of high school while in an 11th-grade special education program. I found that his judgment was probably impaired. I considered the nonviolent nature of the charged offense and the mostly nonviolent nature of offenses identified in Smith’s criminal history. He had once sought help to cure the addiction but had failed to complete a drug treatment program. Finally, I took into account Smith’s peripheral involvement in the charged offense and my belief that he might benefit from an intense treatment program for mental health and substance abuse during a 10-year period of incarceration. Admittedly, departing downward in a sentence based on the facts presented is swimming against the tide. My decision rested on a theory not yet addressed in this circuit. A guideline provision added in 1995 permits the court to depart downward in imposing a sentence based on an unusual confluence of factors, even though none of the factors considered individually would justify the departure. Of course, this is another case where judicial instincts tell you that the logical outcome, based on a rigid application of the guidelines, is not a reasonable outcome. This was not a case for life imprisonment. I could have applied the assembly-line approach and disposed of the case in a day and a half, including sentencing. But I would have remained awake at night questioning whether I’d sacrificed justice to expediency. A record was made at the sentencing hearing, and the 10-page order on the motion for downward departure explains my decision in great detail. Even if the appellate court disagrees, the written decision will go into the basket of public opinion. We know that public opinion is always ahead of and eventually reshapes the law and, in these sorts of cases, public opinion is turning against federal drug sentencing policies. In this, I have joined ranks with an esteemed conservative jurist, Richard Posner of the 7th U.S. Circuit Court of Appeals, who describes the guidelines as “savagely severe.” Another question posed by the facts of these cases goes to disparity in the enforcement. Crack cocaine is singled out for draconian punishment even though it is established now to a scientific certainty that the psychotropic effects of powder cocaine and crack cocaine are no different. Crack is a simple mixture of powder cocaine, baking soda and water baked in a microwave oven down to a cookielike hardness. Until halted by the Florida Supreme Court several years ago, police departments made it to sell in sting operations. Crack makes the illegal substance available to the poor and anyone else in search of a quick, cheap high. It accounts for less than 25 percent of all cocaine use in the country. High-priced powder cocaine is the preferred drug of the affluent. It is sold and used in the kinds of upscale places where law enforcement officers seldom go. Earlier this year, the organization Human Rights Watch published a paper, “Punishment and Prejudice: Racial Disparities in the War on Drugs,” which reported that blacks make up more than 74 percent of those incarcerated for drug-related offenses in the state of Florida alone. The researchers describe the situation as a national scandal. Another report, cited by Stuart Taylor Jr. in a 1999 Daily Business Review article headlined “Politics, not justice, motivate drug policy,” stated that blacks make up 88 percent of those incarcerated for nonviolent drug offenses nationally and observed that the statistics reflect racism in enforcement policies. Most certainly, as I pointed out in the order on the motion for downward departure in the Smith case, popular opinions on the severity of drug laws are a challenge to congressional wisdom, which, of course, is not the business of the courts. The disparity in the enforcement of the laws, however, may raise a justiciable issue for review by the courts. In the meantime, the old adage remains true: “The rich do the crime; the poor do the time.” Wilkie D. Ferguson Jr. has been a judge on the U.S. District Court for the Southern District of Florida since 1993. He previously served on Florida’s 3rd District Court of Appeal and as a circuit court judge. This column is an edited version of a recent talk that he gave in Miami at a Federal Bar Association luncheon.

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