WASHINGTON, DC — Judge John Gleeson hears cases where he used to prosecute them, in the federal courthouse in Brooklyn. There, in 1992, he led the team of prosecutors that put the Mafia boss John J. Gotti in prison for life.
Judge Gleeson is not shy about meting out tough sentences. “Most people, including me,” he wrote in a 2010 decision, “agree that the kingpins, masterminds and midlevel managers of drug trafficking enterprises deserve severe punishment.”
But he has lately been saying that his old employer, the Department of Justice, has stopped living up to its name when it comes to some small-time criminals.
Almost 20 years to the day after delivering his closing argument in the Gotti trial, Judge Gleeson considered the fate of Jamel Dossie, whom he called “a young, small-time, street-level drug dealer’s assistant.”
Mr. Dossie was an intermediary in four hand-to-hand crack sales, for which he made a total of about $140. Two of the sales exceeded, barely, the 28-gram threshold that allows prosecutors to call for a mandatory five-year sentence. “Just as baseball is a game of inches,” Judge Gleeson wrote, “our drug-offense mandatory minimum provisions create a deadly serious game of grams.”
It is a curious game, one in which a participant rather than the supposed umpire can have the last word, Judge William G. Young of Federal District Court in Boston wrote in a ruling in another case a couple of weeks ago.
“Prosecutors run our federal justice system today,” Judge Young wrote. “Judges play a subordinate role — necessary yes, but subordinate nonetheless. Defense counsel take what they can get.”
The prosecutors’ decision to invoke the law calling for a mandatory sentence in Mr. Dossie’s case meant that Judge Gleeson had no choice but to send Mr. Dossie away for five years. Had his hands not been tied, Judge Gleeson wrote, “there is no way I would have sentenced” Mr. Dossie to so long a sentence.
“We had a ‘sentencing proceeding’ that involved no written submissions, no oral advocacy and no judging,” he wrote. “The proceeding had all the solemnity of a driver’s license renewal and took a small fraction of the time.”
The Dossie case illustrates what some judges say is a common problem: Prosecutors’ insistence on mandatory minimum sentences for minor players in the drug trade has warped the criminal justice system and robbed judges of sentencing authority.
The problem, they say, can be traced to a 1986 law enacted in response to the drug overdose of Len Bias, a college basketball star. The law was meant to establish two kinds of mandatory sentences, its sponsors explained at the time. It called for 10-year terms for drug kingpins and five-year terms for midlevel dealers. The law itself, though, used the quantities of drugs involved to signal whether the defendant held a leadership role.
“An addict who is paid $300 to stand at the entrance to a pier and watch for the police while a boatload of cocaine is offloaded,” Judge Gleeson wrote, “qualifies for kingpin treatment.” The law leaves the decision to prosecutors.
As for Mr. Dossie, the judge wrote, “no one could reasonably characterize him as a leader or manager of anything, let alone of a drug business.”
Judge Gleeson called on Attorney General Eric H. Holder Jr. to implement a new policy at the Department of Justice.
“D.O.J. should seek mandatory minimum sentences,” the judge wrote, “only in the cases for which Congress intended them: in cases against leaders and managers of drug enterprises, not the low-level offenders like Dossie who constitute the bulk of the federal drug docket.”
About 74 percent of defendants charged with crimes involving crack cocaine faced a mandatory minimum sentence in the year that ended in September, according to statistics compiled by the United States Sentencing Commission. But only 5 percent of them led or managed a drug business.
A Justice Department spokeswoman said the administration supported the judicious use of mandatory minimum sentencing laws for some serious crimes. In a 2010 report, Lanny A. Breuer, an assistant attorney general, said mandatory minimum sentences “remove dangerous offenders from society, ensure just punishment and are an essential tool in gaining cooperation from members of violent street gangs and drug distribution networks.”
That last point, about gaining cooperation, is the most important one, said Nancy Gertner, who was until recently a federal judge in Boston and now teaches at Harvard Law School.
The goals of criminal law used to be deterrence, punishment and incapacitating violent offenders. “Recent changes,” she said, “are intended to give the prosecutor a menu and tools with which to secure cooperation.”
In a front-page article last year, my colleague Richard A. Oppel Jr. showed that prosecutors use the threat of tough mandatory sentences to extract guilty pleas from defendants and so reduce the number of cases that go to trial.
Paul G. Cassell, a former federal judge who is now a law professor at the University of Utah, said Judge Gleeson’s proposal to have the Justice Department limit its use of mandatory minimum sentences in drug cases to defendants who played a leadership role was “a brilliant package.” It was, he said, administrable, fair and “doable in this political environment” because it requires no action from Congress.
Jamel Dossie, meanwhile, is serving what Judge Gleeson called an onerous and disproportionate sentence.
“The only reason for the five-year sentence imposed on Dossie,” Judge Gleeson wrote, “is that the law invoked by the prosecutor required it. It was not a just sentence.”