Mimesis Law
19 September 2020

Federal Criminal Justice System Totally Fine, Prosecutor Reports

September 16, 2016 (Fault Lines) – Earlier this week, the Washington Post sponsored a criminal justice summit. The idea, like most summits, was to get people together and talk about stuff. More importantly, the summit revealed the way federal prosecutors view the criminal justice system.

According to Steve Cook, head of the National Association of Assistant United States Attorneys, the system is fine. At least for now. Reform is going to ruin everything the white knights have been working for.

“The federal criminal justice system simply is not broken,” Cook, a federal prosecutor for the Eastern District of Tennessee, told the audience during a panel on sentencing reform. “In fact, it’s working exactly as designed.”

Cook was joined on a panel by Kevin Ring, vice-president of Families Against Mandatory Minimums, and Representative Bob Goodlatte, chair of the House Judiciary Committee. And there was a lady who is Google’s Public Policy and Government Relations Senior Counsel-Civil and Human Rights. Because you can’t do anything without Google. And because of that, Google has enough money to hire a person with that title. But I digress.*

Cook, speaking on behalf of line federal prosecutors, was intent on describing the federal criminal justice system as the last protection between us and a roving band of “thugs.” Yes, he used the word thug to describe the type of people he deals with as an East Tennessee federal prosecutor. And, one could suppose, the kind of people his fellow prosecutors deal with all around the country.

According to Cook, there are no non-violent drug offenders, and we need to build more prisons. He spoke fondly of the government’s response to spiraling crime in the 1980s. Cook talked about Congress wanting to focus on the most violent offenders and drug kingpins with federal law. He called them “thugs” and “the worst of the worst.”

Kevin Ring, the vice-president of Families Against Mandatory Minimums, had a different take on the situation: it’s not as simple as Cook claims. But what does he know? Cook is not just a federal prosecutor, the elite of the elite crime fighters. He is also the head honcho of the federal prosecutor club. How can some lobbyist like Ring hold a candle to that experience?

Easy. Ring argues his points having been inside a prison, and not just as a visitor. As a former lobbyist and counsel for the Senate Judiciary Committee, he got swept up in the Jack Abramoff lobbying scandal and did 15 and a half months in federal prison. So when Ring claims inside knowledge, he has it. The real kind.

“When I went to prison, I saw people that were serving sentences that were completely disproportionate to their crimes,” Ring countered. “It’s getting tiresome at this point to hear people tell me who’s in federal prison because I was there […] I served with a lot of drug dealers, people who Steve’s group might characterize as real ‘masterminds’ because they got caught in a larger conspiracy. They deserved punishment, and they deserved to be held accountable, but they didn’t deserve to be there for 10 or 15 years. That wasn’t going to make us safer. It was so clear that these guys were rotting and not getting better.”

Ring points out one of the major problems with Cook’s claims. He is not talking about kingpins or “the worst of the worst,” or cartel leaders flying around in helicopters leading the lavish life of the international drug dealer. And he knows it.

Instead, Cook is taking advantage of the exact same thing he is able to use in court to swat flies with a howitzer. Under federal conspiracy law, a defendant’s role is not all that important, as long as he was involved. When the federal government indicts a drug conspiracy, the “leader”** is listed right there on the same indictment as the deliverymen, who often are getting no real benefit from their conduct.

But a conspiracy in federal court is a lot like the old school mafia. Once you are in, you are in. And good luck arguing your way out. But wait! You can only be held responsible for what was reasonably foreseeable, right? So no worries, you just explain how you didn’t know what was going on in the grand scheme of things. You just had a small part in the operation and you should get a small sentence in return.

Of course, that is not how it plays out. First of all, the government knows you are lying. You know more. Unless you are cooperating. Then you are an angel. Funny how that works. And the protection of “reasonable foreseeability” is only as good as the federal judge considering it. Since there is almost zero chance your neighborhood federal judge ever defended a drug dealer, there is also almost zero chance he or she will have the slightest bit of sympathy for you.

Which brings us back to mandatory minimums. Even if you find yourself in front of a judge who understands your situation, Congress has tied the judge’s hands. And that is exactly where reform intersects with Cook’s position and reveals why Cook is so wrong.

Those kingpins Cook is talking about are subject to the same mandatory minimums as the little fish at the bottom of the conspiracy, with one caveat. In the federal system, the prosecutors get to choose when they remove mandatory minimums. And they do it in exchange for information.

Who has more valuable information? The guy who takes a bag from one house to another house for a couple hundred bucks? Or the guy who is running the show? Obviously the way the system is set up now, the kingpin gets to reduce his sentence based on his kingpin knowledge. The little guy is the one the reformers are talking about. Federal prosecution casts a wide net. Just because Cook doesn’t care about the collateral damage doesn’t mean the rest of us shouldn’t. It’s that collateral damage that drives the movement for new laws.

Steve Cook thinks everything is just fine. He specifically holds the keys to the mandatory minimums, so he doesn’t recognize there is a problem. If you ask a fox where the safest place on the farm is, of course he will tell you it’s the henhouse.

*Ed. Note: Notice who wasn’t invited to be part of the chat? A criminal defense lawyer.

* *In federal drug cases, even the head guy is usually a loser with a bunch of dope, but no money.

2 Comments on this post.

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  • Richard G. Kopf
    16 September 2016 at 10:16 am - Reply

    Dear Josh,

    In my almost 25 years, it is the rare drug conspiracy that I see involving anyone but total and complete dumbshits who are most often poor. But it is equally true that many of these folks would steal food from a disabled homeless veteran if the opportunity presented itself–and not because they were hungry.

    I don’t know what to do with offenders like these. Maybe, just maybe, our brother from eastern Tennesse is correct, at least in a way. Incapacitation is expensive and does nothing for the offender but it takes these offenders off the streets. We know people age out of crime so there is a proven utility in long prison sentence for youthful offenders even if we call them “punks” rather than “thugs.” (H/T to modern sensibilities.)

    As for the guy who claimed to see drug dealers “rotting” in prison, well, duh. Really, what the hell else does he expect? You don’t fix sociopaths. Plus we lack the guts, not to mention the Constitutional power, to take the draconian measures that might address the problem before it starts. Mandatory Norplant anyone?

    On the whole, the federal criminal justice system is fucked not fine. But maybe it reflects the best we can do.

    All the best.

    RGK

    PS The foregoing notwithstanding, mandatory minimums should be dropped or substantially lessened.

    • Jamie
      20 September 2016 at 3:06 pm - Reply

      Lead abatement. If you want to prevent crime nothing is more effective or efficient. (It’s far better than Norplant.)

      Also: you’re right, the reality is that most dumb shit is done before someone’s brain has had a chance to develop the executive function stuff that allows for impulse control and long-term planning. Especially for anyone who hasn’t yet past their mid-20s, it’s likely that they’ll grow out of it… given the opportunities and a future they can build towards.

      They don’t get a chance to do that if you stick them in a cell where they’ll get no opportunities to learn the basic functional human-interaction skills and self-control they need as adults. And be taught that they deserve to rot there with the sociopaths.

      https://www.theguardian.com/commentisfree/2016/jun/01/drug-addiction-income-inequality-impacts-recovery

      I would assume that the people he expected to see rotting in prison were the rapists and murderers and child abusers.