CONGRESS WANTED STIFF FEDERAL DRUG PENALTIES TO BE A DETERRENT, BUT SOME
SAY IT DOESN'T WORK

It's just incredible, says Tony Gallagher, chief federal defender for
Montana.

"These young kids, 18 to 25, with no criminal record. They sit across
the table from their defense lawyer and learn what they consider a
little dope means at least five years.

"The look on their faces is utter shock or disbelief. You try to
explain it to the parents, wife or guardian, they get mad and blame
you."

Mandatory minimum federal sentences are typically five or 10-year
terms. Opinions vary on just how much the general public, specifically
those engaged in drug trafficking, know about the seriousness of the
offense. There is also debate about whether knowledge of the penalties
would make any difference.

Justin Schwartz, 29, of Glendive, and recently convicted of drug and
gun charges, said knowing about the strict sentences that sent him
away for 10 years would "definitely" have made a difference.

Dan Feist, who was released from federal custody after serving 6 1/2
years on a gun and drug indictment, said knowledge of the penalties
"probably" would have spooked him enough to modify his behavior.

Since Congress completely revamped sentencing laws nearly 20 years
ago, an increasing number of people charged with federal crimes,
especially drug offenses, are spending time behind bars.

"Congress wanted to make a point," Montana U.S. Attorney Bill Mercer
said. "Congress must have inferred a less serious set of punishments
would not insure public protection and adequate respect for the law."

Mandatory minimum sentences create an incentive for suspects to talk
to investigators about other defendants and other crimes going on in
the community, he said. Without those incentives, law enforcement
would be hamstrung in its efforts to break drug rings and other
conspiracies, Mercer said.

Prison populations soared after sentencing reform was introduced.
Including local, state and federal institutions, the rate of
incarceration in 1995 was 601 per 100,000 residents. That rate jumped
in 686 per 100,000 in 2001, a year in which at least 2.1 million
people were incarcerated.

The rigid federal sentences, however, are controversial even among the
judiciary. In Montana, Chief U.S. District Judge Don Molloy of
Missoula would just as soon see them gone.

"I have such frustration with it," he said. "Sentences are supposed to
be serious enough to deter crime, but what if the only person it
deters is the person you've just sentenced to 10 years?"

Molloy would like to bypass minimum mandatory penalties and sentence
all drug defendants under federal guidelines. The guidelines offer the
flexibility to consider individual factors of each case and each
defendant. They also offer more discretion for judges in the delicate
balance of sentencing.

"I wonder if you could just put them in prison long enough to say,
'Man, I don't want to do this,' but not so long they get used to it,"
the judge said.

U.S. District Judge Richard Cebull in Billings has mixed feelings. He
has doubts about whether mandatory minimums should be applied to
first-time drug offenders with no criminal records.

"But when you view the whole picture and see what their activities do
to innocent people, especially young people, it probably balances out,
and they get what they deserve," he said.

It's hard to send someone away for five to 10 years, especially those
who are young and have never been in trouble before, Cebull said. But
even small dealers can cause big problems, he said.

"How many people are they getting addicted to drugs?" the judge asked.
"You don't have to use very much (meth) and you're addicted. Most
users get into dealing to support their habit."

Billings defense attorney Jay Lansing argues that the harsh penalties
have been a fiasco as a crime deterrent and have resulted in
unnecessarily brutal penalties.

"I don't see the problem of drug usage and addiction going down as a
result of these mandatory minimum sentences," he said. "If their
purpose was to send a message to potential users or potential
distributors, they failed."

Knowledge of drug penalties probably does play some role in decision
made by more sophisticated dealers, according to Assistant U.S.
Attorney Jim Seykora.

"Some people tailor their loads based on sentencing guidelines," he
said.

Yellowstone County Chief Public Defender Penny Strong advocates
treatment over long mandatory sentences.

"From an economic and legal standpoint, these young people could be
sentenced to probation, and then, if they can't handle that, to
prison," she said. "But they don't get that one chance. That's what
bothers me."

The first-timers are usually very young, and mandatories take big
chunks of their lives, she said.

Strong contends that everyone is presumed to know what constitute
federal drug and gun violations and the penalties that go with them.
But even a dealer astute enough to peruse federal criminal codes
wouldn't get a clear picture of a potential sentence.

The sentencing guidelines, a manual more than an inch thick, combine
with mandatory minimum sentencing laws into a system Strong says
compares to the Internal Revenue Code in complexity.

"I don't think we can expect ordinary citizens to know these," she
said.

Strong also is alarmed at the nation's incarceration rates, the
highest in the world.

"When you look at this from an international human rights standpoint,
how are we regarded by the rest of the world when we have young people
in prison who could be treated in the community?" she wondered.

Mark Werner of Billings is assistant federal defender for Montana and
is also an advocate of treatment.

"I've had a few clients who, for one reason or another, dodged the
bullet, and had treatment, and it took hold," he said. "The
combination of treatment and knowledge of the penalties can be pretty
effective combination."

He said he also isn't convinced the stiff penalties act as a
deterrent.

"I know I'm not hurting for repeat business," he said.

Older defendants who have been through the system probably know what
they could be in for, said Frank Flemming, chief federal probation
officer for Montana. Younger ones get caught up in habits they can't
control.

The last thing the young addicts are thinking about are the penalties,
he said. "They're being fed the type of information that they'll never
get caught. They certainly don't believe in any consequences."

Yellowstone County Attorney Dennis Paxinos agrees on that
point.

"The drug is so vicious, it's always, 'I'm not dumb. Those other guys
were dumb. I'm not going to get caught,' " he said.

Paxinos also believes many defendants know more about the legal system
than they let on.

"There must be some street knowledge, because the first question when
they get popped is 'Is this state or federal?' " he said.

Billings Police Chief Ron Tussing said he believes the tough penalties
do deter drug trafficking, but doubts young offenders have much
knowledge of the federal system.

"Most of the rookie 'Beavis and Butthead' bathtub manufacturers don't
know," he said. But, he's not so sure it would matter anyway. "They
just think they're invulnerable. I don't think that they think about
the consequences."

Billings defense attorney Lansing argues that mandatory minimum
sentences warp the process of justice by treating "unequal things equally."

"Those that should be treated more leniently are treated the same as
someone in the business for five to 10 years, because the only thing
that counts is the weight of the drug," he said. "When judges had
discretion in sentencing, I can't think of a time when I thought,
'Hey, my client got a raw deal.' "

Guidelines and accompanying mandatory minimum sentences for some
crimes were instituted to put truth and fairness in sentencing. A
defendant who gets a 10-year sentence, does at least 85 percent of it.
Parole was abolished.

Congress also installed the guidelines with the idea of assuring
fairness to people charged with similar crimes. The guidelines offer a
sentencing range calculated on the crime itself and a complex variety
of other factors, including the defendant's previous criminal history.

The objective was to make sure similar defendants committing similar
federal crimes get similar sentences, whether charged in Montana or
New York. Judges, however, have considerable leeway under the
guidelines to depart upward or downward from the sentencing range.

For the family of Justin Schwartz, the debate hits home in
Glendive.

"These laws were put into affect in an attempt to keep drug dealers
off our streets, but what they are doing instead is filling our
prisons with thousands of first-time, non-violent offenders who simply
made very bad decisions," his sister-in-law, Gina Schwartz, wrote.

She proposes abolishing mandatory minimums and reverting to a system
where judges consider each case on its merits. Mandatory drug
treatment would cost less and be more effective than mandatory prison
time, she said.

For Justin the reality of the long stretch ahead is finally beginning
to set in, and it's not good.

"I've lost everything," he said.