What was your legacy in Alabama?|
Well, I think what we tried to do is give the taxpayers the best return on
their dollar. There are more drug cases than you can prosecute, good cases,
and so we just demanded a lot of our prosecutors and ask[ed] them to move those
cases and try them effectively, and I think they did a good job of that. We
adhered to the sentencing guidelines as passed by the Congress of the United
States, which we were ethically and legally bound to do, and I think in
appropriate manner, and so over the years, I had some occasion to give a lot of
thought to drugs. I chaired a committee for the Department of Justice and have
thought about it and wrestled with what are the best things we can do to
utilize our resources effectively to reduce illegal drugs in America. ...
I think we made a big difference. ... I think if every state in America and the
federal government would maintain an intensive prosecution effort of the most
notorious drug gangs in their communities, you can affect drug use that way.
That is a serious and significant component of an overall plan to reduce drug
What about low level traffickers? Are small fry drug dealers getting bigger
sentences than they deserve?
Well, what's a small fry? Is a small fry a person who was caught with six
ounces of crack cocaine who's been selling drugs for three years before he got
caught and a full time drug dealer, maybe extorting people who don't pay him,
threatening their lives, maybe has a series of prior convictions. That's what
people sometimes call small fry, because perhaps when you caught them they only
had a quarter of an ounce or an ounce of cocaine, but testimony proves they
were a major conspirator in an organization that dealt kilograms of crack
cocaine into the communities for a period of years.
What are mandatory minimums?
The federal sentencing guidelines set some mandatory minimums and they also set
ranges in every case within which a judge must sentence. And all I ask[ed] our
lawyers to do was to be honest, to present the evidence they have, and ask the
judge to sentence appropriately within the guidelines, and they were narrow.
It was likely to be 24 to 30 months. If a judge likes you, he'd
give you 24 months. If he didn't, he gave you 30. But the
guidelines were pretty narrow. Sometimes, the sentences were tough. You'd
have a 25-year-old who's been selling for a long time getting 15
to 18 years in jail, pretty tough sentences. But as they say, if you
can't do the time, don't do the crime. ...
I've ... expressed my concern that the numbers of prosecutions of powder
cocaine, which is often the cocaine that comes in from Colombia and so forth,
are down 10% by this Department of Justice. Even though their [numbers
of] prosecutors are up, their drug prosecutions have been basically flat, and
so I think we need to get more attention to prosecutions ... . If I had to be
forced to choose, I would prefer more prosecutions in exchange for a less[er]
sentence. I think what we need to do is send a clear message that drugs will
not be sold in any community in America. There are areas of cities in America
today that everyone knows drugs are being sold openly, and that can not be
allowed and if we move aggressively, and Giuliani proved it ... Mayor Giuliani
[proved] in New York that if you start with those small cases and clean out the
streets and eliminate the bickering and the shootings and the robberies and get
those people locked up who are regularly dealing drugs and other criminal
activities, your crime statistics go down dramatically.
How does the "substantial assistance" provision work?
... It's particularly helpful in a drug case, because there's no single drug
person. ... The drugs come into the country. One person sells it to the next.
And they have to confess, in effect, if they've been caught, and tell where
they got the drug. Then you investigate that person and that person and pretty
soon you can be arresting some of the biggest dealers in the community. And
that was always our goal.
That was the concept?
Yes. It was that and the fact that there is no incentive for a person to plead
guilty and to confess if there isn't some benefit from it. Because usually
these co-conspirators [are] friends, sometimes even relatives, so they don't
want to testify against them. But if you can say you're looking at 10 years
and we'll recommend five years ... you've got to corroborate your testimony,
but we want you to tell what you know, where you've been getting your drugs and
who you've been selling your drugs to. That's standard prosecutor practice
around America, and I think it's been very effective.
Isn't it destructive to society to have families turning against each other?
It's a tough business, but drugs fray the fabric too. This law and the law of
the United States says you cannot sell cocaine or heroin and if you do, you're
going to be caught. You can take the sentence they gave you, or you can
cooperate and tell who was involved in the business with you.
Isn't it a problem that conspiracy law allows possibly innocent people to be
convicted on testimony alone?
That's a theoretical problem; that's not reality. There is not a problem in
reality. I've been at it for 15 years, I've seen it time and time again,
people do not testify against innocent people, they, reluctantly, only testify
against guilty people. It's hard enough to get that, and they usually minimize
[the wrongdoing], "Well, I sold to him one time or I bought from him one time,"
and later you may find out that they had an ongoing relationship for years.
But I have not found that to be a problem. Most professional prosecutors have
not. Innocent people are not getting convicted under this on any kind of
routine basis, and you have to have more than the uncorroborated word of a
co-conspirator if you want to get a conviction. You got to have some real
proof that corroborates that testimony. You usually look for two, three, four,
five people that testify before you indict somebody. One person testifying
that another one was a partner, and there's no evidence to back that up, would
not be indicted.
Some critics say that it's not fair that higher level conspirators get
lesser sentences than lower level participants by "snitching down" on people
who have less information, and therefore, less to offer the government.
... Occasionally, it works that way but not normally. If you handle the cases
well, the larger dealers ought to get more time. But that does not always
happen. Sometimes the larger dealers may well have the opportunity to lead the
investigators into an international drug smuggling ring of very significant
proportions, and it could, in fact, risk their very life because they're
murdered many times, these cooperating witnesses, and so they say, "I'll work
under cover, I'll wear a recorder, I'll go meet these people in Miami, these
Colombian people, but I want a low sentence. I don't want to spend 20
years of my life in jail, too." ... So sometimes ... a big dealer will get what
might appear to some to be a less than appropriate sentence, but that really is
the judgment of the prosecutor, and his skill in making sure that he makes good
judgments about what kind of recommendations to make, and of course the judge
does not have to follow it. ...
Does the system grant prosecutors too much power?
The prosecutor has the power not to recommend a downward departure, but once he
does, the judge sets the sentence. ... If the sentence were 10, he may
recommend seven and the judge may give five or eight. But it's the judge's
final call... .
Does the substantial assistance provision provide an incentive for
cooperating defendants to lie?
Well, you have to be careful. A good prosecutor must always be careful, and if
there's not corroboration on the testimony of a co-conspirator drug dealer, you
should not proceed with the case. You should have absolute confidence that the
facts given to you are true. Or you should not proceed.
What is good corroboration?
Well, you have things like mailing records ... maybe admissions on tape. Maybe
the person gets the person to talk about the prior drug deal they did. "You
remember that last cocaine deal we did, I got five kilos from you, I'd like to
get another five" and he said, "Yeah, I got some more, just like last time."
So sometimes that corroborates it. Or maybe it's four or five people who say
the same thing. ...
Why are there so many federal drug cases in Alabama?
... We used our resources that we had effectively. The state police really
like it because you had a Speedy Trial Act and cases were brought to trial
within 90 days ... and they got stiff sentences promptly, and they were
removed from the community. Whereas, too often in the state courts you would
have the circumstance of a person being arrested, being released on bail, and
then being tried a year later, maybe waiting another year on appeal before they
ever went to jail. The federal system is a very effective system to prosecute
criminal cases, and it does a good job at it. You can argue whether the
guidelines are too severe or not. I think that's a debatable issue. And I'm
perfectly willing to discuss that. But if the guidelines called for a certain
sentence, I expected my prosecutors to tell the judge the truth and let the
judge sentence. No prosecutor can sentence. Sentences are done by the judges.
And, by the way, the probation office does a background investigation to see
what the defendant's involvement was, his prior record, and those sorts of
things, and advises the judge before the sentence is imposed.
Do you think the sentencing guidelines are too severe?
No, I don't really think it's too severe. I think on occasion people get very
stiff sentences [where] maybe lesser sentences would have been appropriate, but
it's difficult to say. You pay a price when you have an objective sentencing
system. That is, nothing is perfect. If you leave it up to the judges--which
we had before--you'd have two defendants for the same offense and one judge
would give probation and another fifteen years. I've seen it time and time
again. That's why Democrats like Senator Kennedy and Senator Biden and Strom
Thurmond [and other] Republicans, joined on this plan to have objective
sentencing criteria that I think has fundamentally worked. I believe it's
effective. It does allow people, particularly in drug cases, to cooperate and
reduce their sentence, which then helps law enforcement eliminate whole gangs of
drug dealers. Whole neighborhoods can be freed from the everpresent corner
drug dealer, and that has worked and it's good for the country. But it needs to
be a part of an entire effort of education, interdiction of foreign imported
drugs, and street enforcement. All of those are important.
Is the war on drugs a success?
It was a success when I left office in 1992. After 12 years of
prosecuting, drug use among high school seniors had dropped every single year
from 1981 through 1991. Now that use is going back up. I'm concerned that
drug prosecutions are down, that the president has not sent a clear message
about the unacceptability of drugs, and I predicted when he started, he reduced
the drug czar's office dramatically, they sent an uncertain trumpet sound about
drugs, and sure enough, drug use went up as I predicted, faster than I
predicted. It's a tragedy to me to see us lose the momentum that we had gained
for over a decade ... .
Is the development of conspiracy law and the substantial assistance
provision an erosion of Bill of Rights?
It's not an erosion of the Bill of Rights to catch somebody, record them on
tape doing a drug deal and have him go to jail. The law of the United States
say if you have 10 kilograms of cocaine you serve five years in jail, and you
get what the law says you get. Now, how is that an erosion of the Bill of
Rights? This defense lawyer complaint is not valid, in my opinion. The
guidelines are tough and if they want to argue about them being too tough, let
them do so. But it's not an erosion of the Bill of Rights. ...
Are you at peace with your record?
I feel good about what we did. I feel like the team we assembled were fine
prosecutors and fine attorneys who did a good job for the taxpayers. We
expected a lot and they worked hard and they did [get] a good return, by
prosecuting good cases effectively with very few reversals and good sentencing.
So I think that's what we were paid to do and I would expect every United
States attorney in the country to do the same. ...