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Second Thoughts on Lighter Sentences for Drug Smugglers

NEW YORK — 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 prosecutors.

To avoid clogging up the court, the U.S. 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 disadvantaged.

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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 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?’” 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 5 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 program.

“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, U.S. 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 U.S. 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.

Douglas, the courier appearing before Mauskopf, started with a base offense level of 22, which is the level for importing between 300 and 400 grams of cocaine. Because 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 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 malamutes 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,” 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. Douglas, for example, was sentenced by Mauskopf to time served of seven months.

Phylicia Lowe, who tried to smuggle 1,000 grams of cocaine 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 — Gleeson decided to give 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 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 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,” Korman said.

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

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