TOUGHER FEDERAL SENTENCES PUSHED

US Attorney Focuses on Drug, Gun Crime

US Attorney Michael Sullivan, in a significant shift, is ordering
federal prosecutors to increase the recommended sentences of
defendants convicted of drug and gun charges, adding between two to 30
years to their prison terms.

The move to stiffen drug sentences in particular runs counter to a
national backlash against the length of federal drug sentences, which
have dropped by more than 20 percent over the last decade, according
to the US Sentencing Commission.

"This is a kind of sea change in the practice of this office,"
Sullivan said recently. "I think it's important that we use the tools
that allow for the most significant punishment."

Sullivan's new policy has raised questions about the fairness of
decades-long sentences for crimes that in state court would carry
sentences half as long, and the wisdom of sending addicts to prison
rather than to treatment programs.

Under Sullivan's "enhancement" policy, a convicted drug dealer's
minimum 10-year sentence can double to 20 years if he has a prior
state drug conviction.

"Indigent defendants are getting hammered by this US attorney's
office, and it's appalling," said Charles W. Rankin, chairman of the
group of court-appointed defense lawyers who practice in federal court
in Boston. "The sentences people are getting are huge, and to what
end? Just because the government wants to be tough and macho."

Sullivan, a former Republican district attorney in Plymouth County,
says the policy - which was introduced in March but only gained public
attention recently - reflects his pledge to get tough on criminals.

The policy comes amid sustained national debate over federal
sentencing guidelines and a growing belief that drug sentences are too
harsh. Some skeptics on the bench and in the legal community question
whether longer sentences deter crime, while others - including the US
Sentencing Commission - have recommended leveling the disparities in
drug sentences.

But in what he views as a war against violent crime, Sullivan believes
prosecutors must use every weapon in their arsenal.

"The public expects we do everything possible to ensure the safety of
the communities that we serve," Sullivan said. "It's critically
important in terms of the message we send to the community, whether
that's people thinking of committing crimes of violence or using
weapons in the commission of crimes."

Before Sullivan announced the policy change, individual federal
prosecutors could take advantage of "sentencing enhancements" at their
own discretion. One, known as an "851 information" after the federal
statute that created it, increases the mandatory minimum sentence for
drug dealers with previous felony drug convictions.

The other way to add years to a sentence is to charge the defendant
with using a firearm in connection with a crime of violence, which can
increase a prison term by five years.

Now, prosecutors in Sullivan's office are required to deploy the
enhancements in every case where they apply, without exception.

"Michael Sullivan sits there knowing that it's politically correct,
that it makes for great press for a politician or prosecutor to say no
to plea bargaining and to demand enhanced sentences," said defense
lawyer Kevin Reddington.

Between 1997 and 2001, when he left office, US Attorney Donald K.
Stern raised the federal drug caseload from one-third to more than 44
percent of the defendants his office prosecuted.

Last year, 235 people were sentenced for drug trafficking in the
federal district of Massachusetts. Since 1999, the number of federal
drug traffickers sentenced in Massachusetts has increased by 30
percent - more than three times the national rate.

For defense lawyers, Sullivan's move dramatically alters the playing
field.

"This war on crime has politicized our justice system, and it's moved
awesome powers from judges, who held them for hundreds of years, to
prosecutors," defense lawyer Martin G. Weinberg said.

The federal sentencing guidelines adopted in 1987 removed much of
federal judges' discretion, but they can still in extraordinary
circumstances grant leniency or sentence a defendant more harshly than
required. However, judges cannot depart from mandatory minimum
sentences in any case. Prosecutors can appeal any departure from the
sentencing guidelines.

US District Judge Nancy Gertner has been an outspoken critic of the
sentencing guidelines, which she says put the prosecutor "alone in the
driver's seat."

"The prosecutor has the ability, just by the way he or she charges a
defendant, to bypass the more stringent mechanisms of proof under the
Constitution," she wrote recently. As a result, judges are often
forced to mete out sentences by "doing the math" dictated by the
900-page sentencing guidelines, she said, resulting in sentences that
far too often are not just.

The two enhancements that have recently become standard in
Massachusetts affect a defendant's "mandatory minimum" sentence. For
instance, the mandatory sentence for selling at least 1 kilogram of
heroin would be 10 years in prision. If, however, prosecutors file
notice that the defendant has a prior felony drug conviction, the
minimum penalty jumps to 20 years. For two prior felony drug
convictions, the minimum sentence is life.

For Sullivan the sentencing change was a no-brainer. "The fact of the
matter is, the more violent offenders you send to prison for a longer
period of time, the better chance you have of reducing your crime
rate," he said.

Privately, some prosecutors in the US attorney's office grumble that
the policy change forces them to seek enormous sentences in cases
where the circumstances don't justify it. "It's politics," one
prosecutor said.

A former Massachusetts state representative and one-time challenger to
US Senator Edward Kennedy, Sullivan is widely believed to hold
political ambitions. "He acts like he's still running for office,"
said one lawyer who regularly practices in federal court.

Sullivan shrugs off such criticism, insisting that he's just trying to
make the US attorney's office as efficient and effective as possible,
even if it provokes criticism.

"This has nothing to do with politics," he said. "Any time you make a
decision, there will be someone on the sideline who anonymously will
criticize you. It improves public safety, and beyond that, it sends a
message to others."