Credit: © Vasabii | Dreamstime.comAttorney General Eric Holder is
years behind Federal Judge Mark Bennett. Holder announced earlier
in the month a general plan to reduce
the mass federal incarceration of those charged with drug
crimes and to find ways to bypass mandatory minimum sentencing if
possible, sometimes by simply underreporting the amount of drugs
found in some cases.

Bennett, though, has been vocalizing problems with federal
mandatory minimums since at least 2009 up in his court, serving the
Northern District of Iowa. Starting in 2009, Bennett ignored federal
guidelines and would sentence those convicted of crack cocaine
offenses the same as he would those who had been convicted of
powdered cocaine. That was a year before Congress finally changed
the law, which had treated crack cocaine possession much, much
more harshly than powdered cocaine.

In 2012 in The Nation, Bennett wrote a first-person
account of his experiences as a judge sentencing poor drug addicts
to prison for terms
over which he had absolutely no control:

Crack defendants are almost always poor African-Americans. Meth
defendants are generally lower-income whites. More than 80 percent
of the 4,546 meth defendants sentenced in federal courts in 2010
received a mandatory minimum sentence. These small-time addicts are
apprehended not through high-tech wiretaps or sophisticated
undercover stings but by common traffic stops for things like
nonfunctioning taillights. Or they’re caught in a search of the
logs at a local Walmart to see who is buying unusually large
amounts of nonprescription cold medicine. They are the low-hanging
fruit of the drug war. Other than their crippling meth addiction,
they are very much like the folks I grew up with. Virtually all are
charged with federal drug trafficking conspiracies—which sounds
ominous but is based on something as simple as two people agreeing
to purchase pseudoephedrine and cook it into meth. They don’t even
have to succeed.

I recently sentenced a group of more than twenty defendants on
meth trafficking conspiracy charges. All of them pled guilty.
Eighteen were “pill smurfers,” as federal prosecutors put it,
meaning their role amounted to regularly buying and delivering cold
medicine to meth cookers in exchange for very small, low-grade
quantities to feed their severe addictions. Most were unemployed or
underemployed. Several were single mothers. They did not sell or
directly distribute meth; there were no hoards of cash, guns or
countersurveillance equipment. Yet all of them faced mandatory
minimum sentences of sixty or 120 months. One meth-addicted mother
faced a 240-month sentence because a prior meth conviction in
county court doubled her mandatory minimum. She will likely serve
all twenty years; in the federal system, there is no parole, and
one serves an entire sentence minus a maximum of a 15 percent
reduction rewarded for “good time.”

He also appeared in drug war documentary The House I Live
In.

Today the Associated Press got their hands on a report by
Bennett written earlier this month
blasting the Department of Justice over the way those doubled
mandatory minimum sentences are handled. Apparently there are no
rules or policies telling prosecutors when they were supposed to
request those enhanced sentences. As a result, predictably
unpredictable applications:

Bennett, a Clinton appointee, said he could discern no pattern
for how prosecutors applied the enhancements in his Sioux City
courtroom over the last 20 years. One probation official told him
there was “no rhyme or reason.”

Bennett obtained and analyzed the only data known to exist on
the issue from the U.S. Sentencing Commission, which he said
revealed a “jaw-dropping, shocking disparity” in how enhancements
are applied across the nation’s 94 U.S. Attorney’s offices.

The data covers 14,000 cases nationally in 2006, 2008 and 2009.
Bennett’s analysis revealed that prosecutors in both of Iowa’s
districts sought enhancements in four out of five cases in which an
offender was eligible, among the highest rates in the nation. But
prosecutors in eight other districts never sought enhancements and
many others only rarely did. In all, an eligible offender received
the enhancement 26 percent of the time.

A repeat offender caught in Bennett’s district was 2,532 times
more likely to face a doubled sentence than one arrested a mile
away across the Nebraska border, he wrote. Those prosecuted in the
eastern district of Tennessee were nearly 4,000 times more likely
to receive an enhancement than those caught in the state’s western
district, he added.

The circumstances behind Bennett putting forth this opinion also
may give us some insight as to why Holder’s new guidance is so
important:

DOJ spokeswoman Ellen Canale noted Wednesday that Bennett
praised Holder’s new guidance telling prosecutors they should not
seek enhancements unless a defendant’s conduct demands “severe
sanctions” — such as if they were leaders of a conspiracy or
violent.

Bennett’s opinion came as he sentenced an Iowa man to two years
in prison on a cocaine distribution charge. Prosecutors sought the
enhancement — doubling the minimum term to 10 years — even though
he’d cooperated and had a single prior offense from 17 years ago.
Bennett ruled the man was among the few offenders who are eligible
for a downward departure, so the minimum didn’t apply.

The sentencing came around the same time as Holder’s new
policies were announced, so the prosecution’s request was probably
not in defiance of Holder’s orders. It is, however, a notable
example of how harsh prosecutors are on drug crimes even when given
discretion. It should make us all wonder whether Holder’s new rules
will actually be fairly applied by prosecutors or whether we’ll
have to hope for more judges like Bennett.

Bennett’s full comments may be read
here (pdf). Beginning on page 43, he absolutely blasts the
Department of Justice for worrying vaguely about “sentencing
disparities” while ignoring its own role in the problem.