Pubdate: Mon, 14 Jul 2014
Source: New York Times (NY)
Copyright: 2014 The New York Times Company
Author: Stephanie Clifford


There was the grandmother who hid heroin in the rails of her
wheelchair. The pair of women who sewed cocaine packets into their
hair extensions. And the Trinidadian man who stuffed cocaine in frozen
goat meat.

For years, a steady parade of drug smugglers have tried all sorts of
ways to ferry contraband into the United States through Kennedy
International Airport in Queens, posing a challenge not only to
Customs and Border Protection officers, but also to federal

To avoid clogging up the court, the United States attorney's office in
Brooklyn has embraced a strategic approach that allows couriers to
plead guilty and offer information in return for lighter sentences.
The policy reflected a view among many prosecutors that the mandatory
minimum sentences for drug-related offenses - which require prison
terms of five years and higher in these smuggling cases - were too
harsh on defendants who were typically nonviolent and

But in recent months, changes in drug sentencing have served to
further lower punishments for these couriers. A year ago, drug
couriers regularly faced three years in prison; now they might face
guidelines starting at only a few months, or no prison time at all.

The changes are raising questions of whether the pendulum has swung
too far. Some prosecutors say that couriers have little to no
incentive to cooperate anymore. Border patrol officials grumble that
they are working to catch smugglers, only to have them face little
punishment. And judges who once denounced the harsh sentencing
guidelines are now having second thoughts.

"This is virtually, you know, a slap on the wrist," Judge Edward R.
Korman of the Eastern District of New York said at a sentencing in May
for a Jamaican man who had swallowed 41 pellets of cocaine and was
caught at Kennedy. "I don't even know why they bothered to prosecute."

At another sentencing, this one for Marvin Douglas, who had swallowed
36 pellets of cocaine before boarding a JetBlue flight to Kennedy from
Jamaica, Judge Roslynn R. Mauskopf, also of the Eastern District,
raised a similar concern.

"I have been listening to Judge Garaufis tell me for the past couple
of weeks, 'Why are we even prosecuting the drug cases?' " Judge
Mauskopf said, referring to another judge, Nicholas G. Garaufis. "And
I understand where he's coming from."

The debate over what constitutes a fair sentence for drug crimes has
persisted for decades. Critics - many of them judges in this court -
have said that sentencing guidelines and mandatory minimum punishments
had become hugely problematic. Nonviolent drug offenders, like
couriers or people selling marijuana on the street, could face longer
guideline sentences than an underground gun dealer. And until
recently, possession of five grams of crack warranted a minimum
five-year sentence. To get the same sentence for powdered cocaine
possession, 500 grams would be required.

Various reforms have been instituted to address the inequities in
sentencing. In 1994, a "safety valve" provision allowed nonviolent
first offenders on drugs - which describes most couriers - to avoid
mandatory minimums if they admitted to all prior criminal conduct. And
in 2010, Congress passed legislation toward balancing the crack versus
cocaine disparity.

The guideline sentences, which work on a point system, allowed for
some flexibility. For accepting responsibility, defendants could
receive three points off, about several months. A defendant is also
eligible for a four-point deduction if prosecutors agree they had a
minimal role in the crime - something that prosecutors in Brooklyn
automatically had done for couriers participating in the fast-track

"There is growing awareness that what we've been doing in federal
sentencing is simply unsustainable," Bryan A. Stevenson, a law
professor at New York University, said.

In the last year, changes have come quickly.

In August, the United States attorney general, Eric H. Holder Jr.,
ordered prosecutors nationwide to charge couriers and other low-level
drug offenders who met certain criteria in a way that did not result
in mandatory-minimum sentences. (Guideline sentences must still be
considered, but they are not mandatory.)

Then, in April, the United States Sentencing Commission voted to
reduce sentencing guidelines for drug crimes by two points, or several
months. The reduced guidelines go into effect in November, pending
congressional approval, but prosecutors in many districts have agreed
to apply them now.

The changes made things more difficult in Brooklyn, where prosecutors
still wanted to give low-level couriers an incentive to avoid trials
and to assist in prosecutions against larger drug distributors.
Believing they had to further sweeten the deal, prosecutors agreed to
give an additional four points off those reduced sentences for
couriers who agreed to cooperate.

As a result, drug-courier defendants can now face sentencing
guidelines that suggest no prison time.

Mr. Douglas, the courier appearing before Judge Mauskopf, started with
a base offense level of 22, which is the level for importing between
300 and 400 grams of cocaine. Because Mr. Douglas had no criminal
history, that would put him at a 41- to 51-month suggested sentence.
But he got four points off for a minimal role, three points off for
acceptance of responsibility, two points off for the safety valve
provision, and four points more for prosecutors' amended
early-disposition program. Then, in front of Judge Mauskopf, the
defense and prosecution argued he should get an additional two points
for the amended sentencing guidelines. That brought his guideline
level to seven, and the recommended sentence range to zero to six months.

A lighter sentence "definitely plays into the equation with them, if
they feel like the penalty isn't going to be as great," said Customs
and Border Protection deputy chief Sam Stabile, who oversees "rovers,"
officers who roam the floors at Kennedy Airport looking for offenders.
"Everything plays into the factors - what the penalty is versus how
much they make."

At Kennedy, about 250 drug smugglers were arrested last year,
according to Immigrations and Customs Enforcement. Through April, 148
had been arrested, putting 2014 on track to be one of the highest
years in recent history.

The investigative work starts 72 hours before a flight, as Customs
officials ask local law enforcement to stop criminals or terrorists
before they board. A second level of computer-based screening looks
for odd travel patterns. For instance, Caribbean residents on
legitimate trips tend to come to and from the United States, not
island-hop without good reason, so a Dominican traveling frequently to
Trinidad might raise red flags, said Craig Sanko, a Customs chief.
Solo trips on a tourist flight, or a ticket purchased far from where
the person lives are also worrisome.

Officers ask questions at various checkpoints, determining whether
there is a good reason for strange travel patterns, or whether a
person's appearance or demeanor raises suspicion. Roving officers
watch the baggage-claim area, also looking for issues.

Belgian malinois work above baggage claim, where the bags are loaded
into carousels, sniffing for suspicious luggage. Officers examine bags
at a customs checkpoint, and off to the side are search rooms stocked
with drug testing kits that turn different colors: peach for opium,
blue for cocaine. People suspected of having swallowed drugs or
putting them in body cavities go for X-rays in a medical center at the
airport, and there is a "drug loo," which mechanically separates drug
pellets from feces.

"They know that they have something and they're trying to avoid being
caught," Mr. Stabile said. "It's a game we play rather well and they
play rather well. We're what stands between them and freedom."

With the sentencing changes, these defendants often face greatly
reduced prison terms. Mr. Douglas, for example, was sentenced by Judge
Mauskopf to time served of seven months.

Phylicia Lowe, who tried to smuggle 1,000 grams of cocaine in inside
food cans in September, walked out of her June sentencing having spent
just one day behind bars for the crime. Judge John Gleeson of the
Eastern District, a longtime critic of harsh drug penalties, noted her
extensive cooperation, but questioned whether she had been truthful
with the government. Asking if "a modicum of jail" was appropriate -
she had been out on bail post-arrest - Judge Gleeson decided to give
Ms. Lowe four months' home detention plus 200 hours of community
service so she could stay in school, an example of what some judges
say is a more constructive approach to rehabilitation than prison.

Christopher Green, who had swallowed cocaine, was, like Mr. Douglas,
down to a zero-to six-month guideline after the adjustments. He did
not participate in the safety-valve program - which would have brought
an additional two-point reduction - and Judge Korman suggested that
was because he would have had to truthfully disclose why and how he
had taken 15 recent trips between Jamaica and the United States when
he was indigent.

"I never thought I'd live to see the day when I would be taking such a
position in these cases considering all the fights I had" over what he
believed were "unconscionably high guidelines," Judge Korman said.

He then went above the guidelines - a rarity in this district - to
sentence Mr. Green to 12 months.  
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