Judge Rules That DEA Agent Unfairly Manipulated Cocaine Case to Obtain Harsher Prison Sentence

IN THE COURTS August 1994

In a blistering attack on police, prosecutors, mandatory minimums and sentencing guidelines, U.S. District Judge Harold H. Greene ruled that an undercover Drug Enforcement Administration (DEA) agent had unfairly "manipulated" the case against Sharon Ortega of Southwest Washington, by insisting that she sell him crack instead of powder cocaine, as she originally wanted to do (Toni Locy, "2nd Judge Rejects Guidelines For Sentencing in Crack Case," Washington Post, July 21, 1994, B1; U.S. v. Shepherd, DDC, Crim. No. 94-0010-1 (HHG), Greene, J., July 20, 1994; BNA Criminal Practice Manual, V8, No. 16, pp. 363-365, August 3, 1994). Judge Greene criticized mandatory minimum sentences and rigid sentencing guidelines because, he said, they take sentencing discretion from judges and allow prosecutors and even police to manipulate the sentences that the guilty receive.

Sentences for the sale of crack cocaine are much stiffer than those for selling powder cocaine. The disparity is a result of the mandatory minimums and sentencing guidelines that create a scheme where the sentence for the sale of one gram of crack worth $100 would be equal to a sentence imposed for 100 grams of powder cocaine worth about $10,000 (at $100 per gram retail). Thus, the police can attempt to get higher sentences for defendants by persuading them to sell crack cocaine instead of powder cocaine. In this case, during the "drug buys" DEA agent Mark Ross insisted that Ortega convert the cocaine to crack. In one instance, Ortega had actually entered Ross's automobile with powder cocaine and he sent her away to convert the drug to crack. This can be done through a simple process where the powder cocaine is "cooked" with baking soda and water in a microwave for a few minutes. Because Ortega did just that, her prison sentence for the drug charge doubled. Had she sold the cocaine in its powder form she would have received five years. However, because she "cooked" the cocaine, she was to receive between ten and almost thirteen years as provided by the sentencing guidelines. However, Judge Greene ruled that because the government agent had manipulated the defendant, a practice known as "sentence manipulation" or "sentence entrapment," he sentenced Ortega under the guidelines for cocaine powder instead of crack. Ortega was sentenced to 60 months (five years) for the cocaine conviction and an additional 60 months for a firearms conviction which must be served consecutively, for a total of 10 years.

Judge Greene wrote that sentencing decisions were a traditional function of the judiciary, but now, with the advent of mandatory minimums and sentencing guidelines, the control of sentences has "slipped ... not only to the realm of the prosecution but even further to that of the police." Judge Greene said that "this development denies due process and is intolerable in our Constitutional system." "The ability of a law enforcement officer to enhance a defendant's sentence through his own actions to [an] enormous degree strikes at the very heart of our system of justice."

In a harsh criticism of the restrictions on judicial independence that the sentencing scheme creates, Judge Greene wrote:

This court, along with many others, has repeatedly expressed its dismay at the restraint Congress and the Sentencing Commission have hoist upon sentencing courts in recent years. [citations omitted] The ever-increasing number of statutes describing mandatory minimum sentences significantly undermines the ability of judges to consider and assess relevant factors when sentencing defendants that come before them. Likewise, this strange calculus that is the sentencing guidelines reduces the responsibilities of the sentencing judge to little more than plotting points on a graph and announcing the mathematical result (slip opinion at 15-16).

In a criticism of sentencing schemes, Judge Greene wrote that the judicial function should be to impose a sentence that conforms to a defendant's culpability:

Although the concept of just and individualized sentencing has been largely aborted in recent years through mechanical systems of mandatory minimums, sentencing guidelines, and such devices as considering as relevant conduct . . . actions for which a defendant has been acquitted, the court still believes that justice, fairness, and the tailoring of a sentence to address a defendant's actual culpability retain a place within our system. It is to achieve these supreme values of a civilized, constitutional system of justice that the Court has determined that it is appropriate to calculate the defendant's sentence based on the weight of the drugs here sold as if the sales had involved only cocaine powder rather than crack (slip op. 10).

Criticizing the sentencing scheme for allowing prosecutors discretion in sentencing, Judge Greene wrote:

Basically ... the ability to achieve disparity [in sentences] has been transferred from judges -- who are generally experienced men and women and who exercise their duties following nomination by the President with the advice and consent of the Senate ... to Assistant U.S Attorneys -- who, whatever their individual intelligence and achievements, have been by and large but a brief period out of law school, and are therefore not likely to have acquired the background and maturity that is required for the determination of what constitutes just punishment for another human being (slip op. 17).

For Judge Greene, an even more disturbing consequence of the sentencing scheme is that it allows the police to play a role in determining a defendant's sentence. He writes that "if the courts must honor a police officer's direction to a defendant to transform cocaine powder [to crack] as a condition of the purchase, that decision will leave the sentence to the mercy of the policeman ... " (slip op. 18). "If an individual's punishment is to be increased it should be done, under our system, by general directives from Congress and by specific decisions made by judges following trials or guilty pleas. It should not be accomplished through the actions of a police officer" (slip op. 14-15).

The disparity in sentences has been criticized for being racially discriminatory in effect. According to U.S. Sentencing Commission data, the majority of defendants in cocaine powder cases are white, whereas more than 90 percent of people prosecuted for crack cocaine are black. Challenges to the sentencing guidelines under a 14th amendment equal protection argument have been rejected when presented to various U.S. Courts of Appeal. U.S. District Judge Clyde Cahill in St. Louis, relying on a 14th amendment equal protection argument, refused to impose a mandatory minimum sentence in a crack case. He said that the law was "directly responsible for incarcerating an entire generation of young black American men for very long periods" (U.S. v. Clary, 846 F. Supp. 768, (E.D. Mo. 1994)). Eric E. Sterling testified on behalf of the defendant in Clary in a post-conviction hearing on race discrimination in cocaine sentencing. Sterling testified about the adoption of the mandatory minimum sentences in 1986, when he served as counsel to the Subcommittee on Crime of the House Committee on the Judiciary. J. Cahill was reversed on September 12 by the 8th Circuit (U.S. v. Clary, No. 94-1422, CA8, 55 CrL 1529).