Pubdate: Wed, 03 May 2000 Source: Chicago Sun-Times (IL) Copyright: 2000 The Sun-Times Co. Contact: 401 N. Wabash, Chicago IL 60611 Feedback: http://www.suntimes.com/geninfo/feedback.html Website: http://www.suntimes.com/ Author: Eric E. Sterling Note: Eric E. Sterling, counsel to the U.S. House Judiciary Committee from 1979 to 1989, is president of the Criminal Justice Policy Foundation, a nonprofit center that promotes innovative solutions to criminal justice problems. SENTENCING IS PERVERSE IN WAR ON DRUGS When the Justice Department cracks down on the shippers of 15.8 pounds of heroin to the United States, they claim another victory in the war on drugs, and highlight the long prison sentences imposed. When a fellow drug warrior pleaded guilty to money laundering this month, he got a hand slap. A woman who sent six shipments of heroin from the U.S. Embassy in Colombia to a Brooklyn, NY heroin gang, using the Embassy's mail service, pled guilty on April 17. Her husband, Col. James C. Hiett, the U.S. Army's top anti-drug commander in Colombia, admitted that he laundered drug money in paying their household bills, and that he concealed the drug money in his safe at the embassy. He admits he facilitated her crimes, and admits he profitted in her crimes. He is typical of thousands of imprisoned drug co-conspirators. The U.S. anti-drug effort in Colombia has been held up to international ridicule and the U.S. Army has been embarrassed by Hiett. But this Justice Department deal is even more embarrassing because this corrupted drug warrior might never spend a day in prison. Typically, when a spouse or lover participates in drug crimes, as Hiett did, they get sentences like the 24 years imposed on Amy Pofahl or the 24 years given to Kemba Smith. Pofahl had been married briefly but was separated from her husband, a wealthy businessman. His "ecstasy" manufacturing and smuggling empire was busted in Germany, and she helped bail him out, using money he had hidden. She was convicted of his drug trafficking and money laundering in 1990. He received a four-year sentence in Germany and has long been free. Amy Pofahl will be in prison until 2014. Smith was a love-struck college student who helped her abusive boyfriend -- Peter Michael Hall, a crack dealer -- rent apartments and hide out. She turned herself in and was cooperating. But he was murdered. Her cooperation was no longer needed, so the government turned on her. The government's plea bargain was a great deal for Hiett. They let him plead guilty to the obscure crime of "misprision of felony." Judges are often handcuffed by the sentencing guidelines to give unconscionably long sentences. Here the prosecutors picked a crime where the judge is handcuffed into giving no more than three years, and will probably have to give much less. If Col.Hiett had been Mr. Hiett, he would have been charged with conspiracy to traffic in more than a kilogram (2.2 pounds) of heroin with a mandatory minimum sentence of 10 years, with a possibility of life without parole. He would have been charged with possession of a firearm (his Army-issued weapons) in the furtherance of drug trafficking, with a mandatory five-year consecutive sentence. As a civilian, Hiett would have been charged with money laundering, facing up to twenty years. At a minimum, he would have been charged with aiding and abetting his wife's money laundering, facing twenty years. The likely sentence for Mr. Hiett for the drug offense would be 11 1/4 to 14 years, in addition to the mandatory five years for the gun possession. For money laundering: 4 3/4 to six years. The court could increase the sentence if it found that the public welfare or national security was significantly endangered, such as by profoundly embarrassing the U.S. anti-drug program with Colombia, or that the offense was committed "to facilitate or conceal the commission of [his wife's] offense." Col. Hiett's deal -- his "misprision of felony" for not reporting his wife's money laundering -- starts at 18 to 24 months. Acceptance of responsibility drops the sentence to 10 to 16 months. The judge can allow home detention. Since Hiett is providing "substantial assistance," the judge could put him on probation. Reportedly, the military is not instituting court martial proceedings. Apparently, they will let him retire with an honorable discharge and military retirement benefits. Currently, our anti-drug sentencing is perverse. The U.S. Sentencing Commission reported in 1995 that more than 55 percent of federal drug defendants were the lowest level offenders -- "mules," bodyguards or street-level dealers. Only 11.2 percent were high-level traffickers. Of over 20,000 federal drug defendants in 1998, only 41 were kingpins. The Justice Department is not going after high-level traffickers. The imprisonment of most our 84,000 federal drug prisoners is doing very little to solve America's drug problem. If the modest punishment for Hiett's is just, the determination should be made by a judge in open court -- not behind the closed doors of a prosecutor's office. The arbitrary application of mandatory sentences is a stench in every federal courthouse. - --- MAP posted-by: Keith Brilhart