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And Justice For All? Our Anti-Drug Sentencing Is Perverse
Published on Tuesday, May 9, 2000 in the Baltimore Sun
And Justice For All?
Our Anti-Drug Sentencing Is Perverse
by Eric Sterling
 
The U.S. Sentencing Commission reported in 1995 that more than 55 percent of federal drug defendants were the lowest level offenders: couriers, "mules," bodyguards, or street-level dealers.

When the Justice Department cracks down on the shippers of 15.8 pounds of heroin to the United States, it claims another victory in the war on drugs and highlight the long prison sentences imposed. When a fellow drug warrior pleaded guilty to money laundering April 17, he got his hand slapped.

He was Col. James C. Hiett, the U.S. Army's top drug commander in Colombia. He is the husband of a woman who sent six shipments of heroin from the U.S. Embassy in Colombia to a Brooklyn, N.Y., heroin gang, using the embassy's mail service. He admitted that he laundered drug money in paying their household bills and that he concealed the money in his safe at the U.S. Embassy. He admitted he facilitated her crimes and profited from them. He is typical of thousands of imprisoned drug co-conspirators.

Typically, when a spouse or lover participates in drug crimes, as Colonel Hiett did, they get sentences like the 24 years imposed on Amy Pofahl or the 24 years given to Kemba Smith. Pofahl had been married briefly but was separated from her husband, a wealthy businessman. His "ecstasy" manufacturing and smuggling empire was busted in Germany, and she helped bail him out, using money he had secreted. She was convicted of his drug trafficking and money laundering in 1990. He received a four-year sentence in Germany and has long been free. Amy Pofahl will be in prison until 2014.

Kemba Smith was a love-struck college student who helped her abusive boyfriend, Peter Michael Hall, a crack dealer, rent apartments and hide out. She turned herself in and was cooperating. But he was murdered. Her cooperation was no longer needed, so the government turned on her. She gave birth to their son chained to a bed. He will be 24 years old when he first sees his mother free. She will be 48.

The government's plea bargain was a great deal for Colonel Hiett. They let him plead guilty to the obscure crime of "misprision of felony." Judges are often handcuffed by the sentencing guidelines to give unconscionably long sentences. Here the prosecutors picked a crime in which the judge cannot give more than three years. Judge Edward R. Korman said he will probably give Colonel Hiett a 12-to-18 month sentence, which prompted considerable criticism by prominent leaders in Colombia.

If Colonel Hiett had been Mr. Hiett, he would have been charged with conspiracy to traffic in more than a kilogram (2.2 pounds) of heroin with a mandatory minimum sentence of 10 years, with a possibility of life without parole. He would have been charged with possession of a firearm (his Army-issued weapons) in the furtherance of drug trafficking with a mandatory five-year consecutive sentence. If his weapon were an assault weapon, or an automatic weapon, he would face a mandatory 10 years, or 30 years, on top of the drug sentence. Mr. Hiett would have been charged with money laundering, facing up to 20 years. Mr. Hiett would, at a minimum, have been charged with aiding and abetting his wife's money laundering, facing 20 years.

The likely sentence for Mr. Hiett for the drug offense would be 11 1/4 to 14 years, in addition to the mandatory five, 10 or 30 years for the gun possession. For money laundering, 4 3/4 to six years.

The court could increase the sentence if it found that the public welfare or national security was significantly endangered, such as by profoundly embarrassing the U.S. anti-drug program with Colombia, or that the offense was committed "to facilitate or conceal the commission of [his wife's] offense."

Colonel Hiett's deal - his "misprision of felony" for not reporting his wife's money laundering - starts at 18 to 24 months. Acceptance of responsibility drops the sentence to 10 to 16 months. The judge can provide for home detention. Since Colonel Hiett is providing "substantial assistance," the judge could put him on probation.

Reportedly, the military is not instituting court martial proceedings. Apparently, they will let him retire with an honorable discharge and military retirement benefits.

Currently, our anti-drug sentencing is perverse. The U.S. Sentencing Commission reported in 1995 that more than 55 percent of federal drug defendants were the lowest level offenders: couriers, "mules," bodyguards, or street-level dealers. Only 11.2 percent were high-level traffickers. Of more than 20,000 federal drug defendants in 1998, only 41 were kingpins.

The Justice Department is not going after the high-level traffickers. The imprisonment of most our 84,000 federal drug prisoners is doing very little to solve America's drug problem.

If the modest punishment for Colonel Hiett's drug and money laundering crimes is just, the determination should be made by a judge in open court, not by a prosecutor a few years out of law school behind the closed doors of the prosecutor's office. The arbitrary application and non-application of mandatory sentences is a stench in every federal courthouse.

Eric E. Sterling, an attorney, is president of the Criminal Justice Policy Foundation. He was counsel to the U.S. House Judiciary Committee from 1979 to 1989.

Copyright 2000 Baltimore Sun

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