Pubdate: Sun, 01 Nov 2015
Source: Washington Post (DC)
Copyright: 2015 The Washington Post Company
Author: Ann E. Marimow


Prosecutors Fear Results of Weakening Mandatory Minimums for Drug Convictions

Portland, Ore. - When the judge entered the wood-paneled courtroom to 
begin the sentencing hearing this fall, 19-year-old Morgan Brittain 
was the only one who didn't stand. She remained seated in her 
wheelchair in the front row.

Brittain looked in many ways like the girl she once was: Nike 
sneakers with hot pink laces, nails painted maroon and silver. She 
still had the slender frame of the dancer and runner she was before 
she overdosed two years ago on a half a gram of heroin she split with a friend.

The drugs had done serious harm. A younger cousin had to read 
Brittain's statement to the judge on her behalf:

"I constantly feel like a burden on everyone because of all the 
things I can't do: walk, talk easily, feed myself, bathe myself, 
drive, draw or even write this statement out. . . . The damage it has 
caused to my family and I is too much to even begin to describe."

Brittain and her family had come to court to face German Tovar-Ramos, 
a man authorities described as a key supplier in the organization 
that sold the heroin to Brittain's friend.

Within days, police arrested TovarRamos because investigators and 
prosecutors had threatened people on lower rungs of the organization 
with stiff mandatory sentences: A girl is on life-support, they said; 
help us get to the higher-level traffickers, or you could end up in 
federal court facing 20 years in prison.

In court, prosecutors portrayed Tovar-Ramos as a highlevel drug 
dealer who moved pounds of heroin every week. His defense attorney 
argued that his client was no more than a glorified delivery boy, and 
certainly not a kingpin.

When it was his turn to speak, Tovar-Ramos rose to apologize, dressed 
in a gray-striped county jail uniform. "I am very sorry about 
everything I have done to this family," he said in Spanish, looking 
straight ahead at the judge. "I was simply trying to help out my own family."

The story of how Tovar-Ramos was apprehended illustrates how heavily 
prosecutors rely on mandatory minimum sentences to take down drug 
networks. But this leverage could soon be diminished because of 
concerns that it has been used too liberally to lock up low-level 
nonviolent offenders who face punishments that are much more severe 
than their crimes.

A broad coalition - including President Obama, Koch Industries, the 
American Civil Liberties Union and some police chiefs and district 
attorneys - is calling for the country to recalibrate the scales of 
justice, especially when it comes to the harsh drug sentences that 
have driven a decades-long surge in the U.S. prison population. Many 
advocates say that the war on drugs has led to needlessly long prison 
terms. The policies have disproportionately affected minority 
communities, because so many of those incarcerated have been black or Latino.

Legislation introduced last month in the House and Senate would 
shorten the length of some mandatory minimums created in the 1980s 
onward and would give judges more leeway in sentencing. The Senate 
version was recently approved by the Judiciary Committee, but no vote 
has been scheduled yet.

Defense attorneys and others pushing to reduce mandatory sentences 
say that the threat of decades in prison leaves defendants without a 
choice at the plea bargaining table. Advocates for sentencing reform 
have also said that judges should have the flexibility to better 
match prison sentences with the threat defendants pose to public safety.

Deputy Attorney General Sally Quillian Yates has expressed the 
administration's support for legislation to reduce some mandatory 
penalties and said prosecutors and investigators could still 
effectively do their jobs without such sentences.

But some prosecutors and other law enforcement officials are lobbying 
against the changes, saying the legislation will make it harder for 
them to dismantle criminal organizations or uncover other crimes, 
including homicides.

"The leverage, the hammer we have comes in those penalties," said 
federal prosecutor Steven H. Cook, who is part of a group of law 
enforcement officials who oppose the sentencing reform legislation. 
"It is the one and only tool we have on the other side."

In Oregon, federal prosecutors said they had no interest in taking 
sides in a politically sensitive policy debate. They agreed, however, 
to talk specifically about how and why they have repeatedly relied on 
mandatory prison sentences to respond to a heroin epidemic that 
nationally accounts for more than 8,250 overdose deaths a year.

Morgan Brittain was nearly one of them.

In May 2013, Brittain was a junior in high school, struggling with 
addiction just as her mother had. After two months at an in-patient 
treatment program, she was excited about coming home to her 
grandmother's house on a weekend pass.

That night, after a few text messages back and forth with a friend, 
Brittain paid her $45 for part of a plastic bag containing half a 
gram of black tar heroin, the size of a pencil eraser. Then she smoked it.

Brittain's grandmother, Ann Linenko, awoke on Mother's Day to the 
crying screams of her two young grandchildren. They had found 
Brittain unconscious on the bedroom floor. Her lips were purple. She 
would spend the next four months in a coma.

Brittain was not expected to live. Her family was days away from 
taking her off a respirator. Slowly, that August, she began to regain 
some brain function.

By then, law enforcement officials had already figured out the source 
of the heroin.

On the morning of her overdose, police relied on the text messages 
and interviews with Brittain's family to track down the friend who 
provided the drug.

The friend pointed police to the street-level dealer, who was 
arrested the next day after a drug sale monitored by police.

What matters most in these cases is not the amount of drugs sold, but 
that a person died or was seriously harmed from the drugs that came 
from a specific dealer. Investigators quickly leapfrog up the 
organization because the lowlevel players are willing to cooperate 
when they learn about the 20-year-mandatory penalty, a potent 
provision of the anti-drugtrafficking law.

Congress created the 20-year mandatory minimum penalty in 1986 just 
months after University of Maryland basketball star Len Bias 
overdosed on cocaine. The provision, informally named after Bias, 
allows prosecutors to implicate an entire drug-trafficking enterprise 
- - every step up the ladder from street dealer to supplier - if they 
can determine that the drugs the operation sold caused the overdose.

Proving that an overdose is the result of a particular drug from a 
specific dealer is often difficult. Local police must investigate 
fatal overdoses as potential homicides, collecting cellphone data, 
fingerprints and other evidence. The medical examiner is quickly 
called in to determine the likely cause of death.

Four days after Brittain's overdose, police arrested Tovar-Ramos 
after watching him attempt to deliver a paper bag containing about 
three pounds of heroin worth more than $45,000. After they found a 
digital scale and red notebook listing drug sales while searching his 
apartment, police arrested two others.

In all, four men were hit with two charges that carried mandatory 
federal sentences: 10 years for a conspiracy that involved one kilo 
or more of heroin and 20 years for the connection to an overdose. 
Prosecutors said the organization was responsible for distributing a 
total of 50 kilos, or enough heroin for an estimated 500,000 individual hits.

In court, Tovar-Ramos's attorney argued that prosecutors were 
overstating his client's role in the drug supply chain. He was not 
out recruiting new customers. He didn't package or weigh the drugs or 
count the money.

Tovar-Ramos, called "Gordito" by his friends, was an undocumented 
immigrant who had come to the United States from Mexico as a teenager 
with a sixthgrade education. He worked on farms and as a roofer in 
California to send money to his family. In Las Vegas, he became 
addicted to cocaine and began selling drugs to support his habit, 
according to court records.

He was arrested twice in less than two years for selling small 
amounts of cocaine and heroin. He spent a total of 15 months in 
custody for both convictions and was deported in 2008.

Back in Mexico, Tovar-Ramos found work at a Puerto Vallarta hotel 
that paid about $100 a week. He returned to the United States to pick 
strawberries on an Oregon farm. When the season ended, he was offered 
$500 a week - plus a car, phone and place to live - to work as a drug 
courier for the organization that would supply Brittain with the 
heroin that almost killed her, according to court records.

Tovar-Ramos was paid the least but took on the highest risk, his 
lawyer Thomas K. Coan said in court. Tovar-Ramos's roommate was paid 
twice as much, according to the defense, and the general manager of 
the operation earned $5,000 per week.

In the past two years, Coan has represented at least three defendants 
in heroin overdose cases. He is impressed with but not surprised by 
how quickly investigators move up the chain in an organization.

"It scares the pants off anyone who is looking at that amount of 
time," Coan said. "The police know the law and the hammer it holds for them."

In courtrooms throughout the country, about 97 percent of people 
accused of committing federal crimes plead guilty instead of going to 
trial, where prosecutors would have to prove their cases beyond a 
reasonable doubt.

The case involving Tovar-Ramos was no different.

During negotiations with Tovar-Ramos, prosecutors agreed not to seek 
the 20-year mandatory sentence. All four men would eventually plead 
guilty to the conspiracy charge that carried a 10-year mandatory 
penalty because it involved 1 kilo or more of heroin.

But, at his sentencing hearing, prosecutors were allowed to ask for 
more than double the time - nearly 22 years - for Tovar-Ramos. He had 
two prior drug convictions and had acknowledged the connection to the 
overdose. Tovar-Ramos also had not helped prosecutors with their 
case, so he did not qualify for a formal sentence reduction.

At the Senate Judiciary Committee hearing last month, deputy attorney 
general Yates said that the "prospect of a lengthy sentence certainly 
provides a powerful incentive for a defendant to cooperate, but I 
don't think that it has to be a mandatory minimum sentence." 
Mandatory penalties, she said, are "most effective when they are 
targeted at the most serious crimes and at the most serious offenders."

She also pointed to the department's change in policy two years ago: 
Former attorney general Eric H. Holder Jr. directed prosecutors not 
to charge lower-level, nonviolent drug dealers with certain drug 
offenses that carry severe mandatory sentences. Since the 2013 Holder 
memo was issued, Yates said, defendants have continued to plead 
guilty at the same rates.

But Cook, the head of the National Association of Assistant United 
States Attorneys, said the rates of cooperation have not changed in 
part because mandatory sentences are still in play as leverage in 
negotiations. The Holder memo, he said, has been interpreted 
differently by individual prosecutors, sometimes in the same office.

Defense attorneys "understand that this tool is still in our pocket," 
Cook said.

The legislation under consideration in Congress would not modify the 
20-year mandatory penalty that applies in overdose cases. But Cook's 
group says the bills would undercut the threat of a 10-year mandatory 
minimum for a kilo or more of heroin, for instance, because a judge 
would have the discretion to drop the sentence to five years for 
certain defendants.

For Portland-based federal prosecutor Kathleen Bickers - who has 
handled most of the office's 41 overdose cases involving 76 
defendants - the mandatory minimum sentences are not merely part of a 
strategy for securing cooperation in her cases.

Prosecutors in the Oregon U.S. attorneys' office said they do not 
want to be perceived as heavyhanded bullies or as arbitrary in their 
charging decisions.

Under the law, someone like supplier Tovar-Ramos has not committed a 
violent crime. But Bickers and her colleagues believe that those who 
supply dangerous drugs like heroin are in essence doing violence 
against people, wrecking families and communities, and deserve harsh sentences.

"Those who deal in heroin deal in death. They need to know that we're 
not going to tolerate this," Assistant U.S. Attorney Steven T. 
Mygrant said after the sentencing hearing in September at the 
towering courthouse in downtown Portland.

"Morgan Brittain is paying a much worse price than any drug dealer 
with a stiff sentence."

Mygrant had recommended that Tovar-Ramos be sentenced to more than 21 
years. Coan, the defense attorney, told the judge that his client did 
not need to spend two decades in prison to learn a lesson.

Five, 10, 15 years in prison, he said later, would not change the 
nation's drug problem or reduce demand for heroin. He doubted that 
such a long sentence would deter other men like Tovar-Ramos from 
making the same journey from Mexico in search of easy cash. More than 
20 percent of federal prison inmates are non-U.S. nationals. Nearly 
half are doing time for drug-related crimes.

Coan also pointed out that two other participants in the drug ring - 
all higher up the chain than Tovar-Ramos, he said - had received 
shorter sentences than what prosecutors were asking for his client. 
One of those men didn't have his record; the other had cooperated.

U.S. District Judge Anna J. Brown was clearly moved by the presence 
in the courtroom of Brittain and her family, a circumstance she 
called "heartbreaking."

No matter the sentence or amount of money the men involved would have 
to pay in restitution to the family, Brown said, it "can't really in 
any way make whole the family's losses here."

When the judge turned her attention to Tovar-Ramos, she took into 
consideration how his less serious earlier convictions for dealing 
drugs in Nevada had driven up the formula for determining his sentence.

But the judge was also firm in rejecting the argument that 
Tovar-Ramos's smaller share of the profits made him any less culpable 
for Brittain's overdose.

"Not one of these defendants would say he intended this kind of 
harm," said Brown, who was appointed to the bench by then President 
Bill Clinton in 1999.

"The harm doesn't change," she continued. "A young user was seriously 
injured, and Mr. Tovar-Ramos is as responsible as the others in this group."

The final judgment: 17 years, 6 months.

Tovar-Ramos waited to be shackled and returned to jail, where he 
would be assigned to a federal prison.
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