George:

Just to be clear about my comments [about sentence reduction] -- I am not offended in principle by the notion that an underling might get a lighter sentence for turning in his or her bosses -- this is often the only way to prosecute the bosses. I am offended in principle that a boss would get a lighter sentence for turning in an underling. In many cases, bosses end up with lighter sentences than the underlings.

Let me give you a specific example.

In a recent federal case, my client and a co-defendant were both charged with murder as a part of a drug conspiracy. My client had no prior felony record. The co-defendant had an extensive history of violence; if he had been prosecuted to the max, he would have gotten a mandatory life sentence. The co-defendant also was the one who was the instigator of the murder -- he was the one who wanted the victim dead, and who was actively looking for the victim on the night of the killing.

A week before the trial, the co-defendant decided to make a statement to the police. The case was fairly strong against both defendants, in my opinion, though I was prepared to make an argument -- supported by some of the government's other evidence -- that my client was a relatively minor player in the killing. The co-defendant did not tell the police anything that they didn't already know, though he said in that statement that my client had been a knowing participant, not just a minor player.

For this "new information" the government gave the co-defendant amazing breaks. First, they agreed not to seek the sentencing option that would have required a mandatory life sentence. Second, they agreed to drop charges of possession of a firearm in the commission of the killing that would have required mandatory sentences of 30 years or more. Third, they agreed to make a motion ( A "5K motion," named after the section of the sentencing guidelines that authorizes this) to give the judge discretion to go below the sentencing guidelines (which, even after these other concessions, called for 30 years to life). My client -- with no prior felonies and a smaller role in the offense -- got no such deal. The co-defendant in fact received a sentence of 20 years; my client received a sentence of 50 years. With about 13% off for good time, the co-defendant will be out in 17 1/2 years; my client will actually serve about 43 1/2 years.

With this kind of deal-making going on, and with judges rewarding drug dealer snitches so liberally, we get sentences that are wildly out of proportion to the relative culpability of the different defendants. We also get drug dealers anxious to sell their souls to make a deal and to get a 5K motion. In many cases, the folks who make the statements and get the 5K motions make up essentially unverifiable stories about others to get their time cut. And it is permissible, under both state and federal law, for someone to get convicted for drug dealing with no police officer ever catching the person with drugs.

This is a system that is fraught with the potential for abuse. I think it is fundamentally bad prosectorial policy for prosecutors to prosecute underlings based only on the testimony of their alleged bosses, where the bosses are to be rewarded with large reductions in jail time. I think I am accurate in saying that it is the policy of both of our local prosecutors' offices NOT to do business this way -- it is only in the U.S. Attorney's office that they will make deals like this.

Lloyd Snook (electronic mail, June 1, 2003)