Bad Reporting About Even Worse Ideas
Oct. 9, 2015 (Mimesis Law) — Imposing a 40-year sentence in a drug case for the purpose of deterrence just feels like it should make a difference. It feels meaningful. It feels newsworthy. The allure of a sentence like that to many judges and all but a tiny minority of prosecutors is undeniable, and an article entitled “Cobb judge sentences convicted drug dealer to 40 years” from the Atlanta Journal Constitution confirms that and a lot more:
A Cobb County judge has sentenced a Gainesville man to 40 years for trafficking cocaine and related charges, District Attorney Vic Reynolds said Wednesday.
Cobb police arrested Maxime Patrick Bien Aime, 36, during a traffic stop in May 2014. They found 36 grams of crack cocaine and 9 grams of powder cocaine — about an ounce and a half total — in his pockets when they searched him, Reynolds said in an email. Aime, a felon, also had a firearm.
Aime also possessed a scale, a marijuana cigarette and $3,500 in cash, the prosecutor said. He admitted owning the cocaine and marijuana when he testified but insisted they were for personal use, not for trafficking, Reynolds said.
Aimee had a previous arrest for drug trafficking that had been reduced to possession with intent to sell in a plea bargain, said his lawyer John Allen Hildebrand. The movement in Georgia and nationally has been to shorter sentences in non-violent drug cases. The Justice Department this week announced the release of 6,000 drug offenders from federal prison.
Trafficking cases, however, still result in serious time, Hildebrand said.
“Realistically, I didn’t think the judge was that hard on him,” said Hildebrand, noting the legal minimum was 10 years to serve. “When you have a repeat drug offender and you get a conviction like that, they tend to lay the hammer down.”
On Tuesday, Superior Court Judge Reuben M. Green sentenced Aime to 40 years, with 20 years to serve in prison and the remainder on probation. A $200,000 fine also was imposed.
The most immediately notable thing is that the headline is misleading. A Cobb County judge didn’t really sentence the guy to 40 years at all. He got 20 years of jail and 20 years of probation, as the article explains near the end. It equals 40, of course, but would anyone reading the title think Aime got anything other than 40 years in prison?
If you don’t think that is misleading, then at what point do you draw the line? If he’d gotten the absolute minimum of 10 years and then 30 years of probation? If he’d gotten 40 years of probation? For all practical purposes, “getting” a number of years means something. To the average reader, it means prison unless otherwise specified. The willingness of the quoted prosecutor and whoever wrote the article to mislead people about the actual severity of the sentence speaks volumes about the mindset of the people who cherish deterrence as a goal of sentencing.
The next problem involves the quantities. I imagine that 36 grams of crack cocaine and 9 grams of powder cocaine sounds like a lot if you don’t know much about the metric system. Even pointing out that it’s just an ounce and a half, as the article does, might not put it into perspective for a lot of people.
On the other hand, at trial, I’m sure some expert testified about how cocaine sells for as much as $100 per gram, just like they do where I practice. We can all agree that $4,500 worth of drugs is a lot, right? They probably didn’t let the jury pass around the drugs either, just like they often do where I practice. It’s because juries are normally shocked by how tiny such “big sounding” amounts of drugs actually are. Even telling the jury that the 45-gram total is only about three tablespoons and that it all fit in his damn pocket doesn’t quite put it into perspective.
That’s also the root of the biggest problem with what I would call the “Costco” defense, the one Aime used by claiming he had it all for personal use but bought in bulk. He wasn’t doing himself any favors having a scale and $3,500 in cash, but whether the defense passes the smell test turns on how the quantity is presented. Three little tablespoons in his pocket or 45 grams with a street value of thousands of dollars? It’s a big difference, though it’s the same exact thing.
Next, I had to read a couple of passages more than once to figure out that they were coming from Aime’s own lawyer. First, he said his client had a previous arrest for trafficking that he pled down. Why on earth would any self-respecting criminal defense lawyer volunteer that about a client to a news outlet? Second, one of the most deterrence-serving comments in the whole article, the one that “[t]rafficking cases, however, still result in serious time,” came from him. Is he trying to scare his other clients into pleading to avoid trial? Or does he plan on running for judge or district attorney in the near future?
The defense lawyer’s last confusing statements are the worst, saying that, “Realistically, I didn’t think the judge was that hard on him,” and that, “When you have a repeat drug offender and you get a conviction like that, they tend to lay the hammer down.” Is he just trying to make himself feel better about what happened to his client, without thinking of how this will play on appeal for an excessive sentence?
It would be an arguably understandable thing to say in confidence to a friend while decompressing after a trial loss, but even then it’s not exactly a great example of a lawyer taking his ethical duties to the client seriously. It certainly isn’t the sort of thing any defense lawyer should be saying to a reporter. Maybe he’s a great lawyer, but if I ever found myself facing charges, I would probably not want to hire the guy who publicly refers to another client as a “repeat drug offender.”
At the end, a prosecutor put a bow on the situation with some classic tough-on-crime rhetoric:
“I believe the sentence imposed by Judge Green sends a message that if you are convicted in Cobb County of peddling this poison, you will be reflecting on your actions from the inside of a prison cell for a long time,” said prosecutor Shep Orlow, who handled the case at trial.
The awesomeness of the name Shep Orlow, and his impressive poison-peddling alliteration aside, his sentiment ignores both the specific circumstances of the person whose case he prosecuted and the history of the drug war itself. Aime, after all, had apparently trafficked before and then pled to peddling poison (say that three times fast) without having been adequately taught to think better of doing it again in the future. More importantly, the same is true of countless other drug offenders over the past 40-plus years who have either escaped serious consequences or had the book thrown at them only to do the same thing again.
What Shep doesn’t seem to get is that there is no message, and the idea that a sentence is anything other than exactly what the judge orders, and the poor reporting that perpetuates the myth that a deterrence-focused sentence won’t prevent people like Aime from finding themselves facing charges again.