5-Year Minimum Drug Term Held Illegal; Dealer Gets Just 1

A senior federal judge has ruled that five-year minimum sentences in drug cases are unconstitutional, comparing the congressional sentencing mandate to asking judges to “cut . . . off someone’s testicles, or their female sexual organs.”

U.S. District Judge A. Andrew Hauk, in a ruling that the U.S. attorney’s office called “clearly illegal,” ordered a convicted cocaine dealer to serve a year in prison, in defiance of a 1984 law requiring five-year minimum sentences for defendants convicted of dealing large quantities of cocaine.

The decision has raised new complications in what was to have been the first test case in Los Angeles over the constitutionality of comprehensive new federal sentencing guidelines, which took effect in November.

In an opinion written by Hauk, a majority of the judges in the Los Angeles-based Central District last week declared the guidelines unconstitutional.

But Hauk went well beyond the issue of the guidelines in a hearing on Monday, declaring that mandatory minimum sentences--which have been repeatedly upheld by the nation’s appellate courts--also violate defendants’ due process rights.

At that point--according to prosecutors, defense lawyers and the judge’s own law clerk--Hauk called the minimum mandatory sentences and the new federal sentencing guidelines “barbaric . . . a return to the 5th Century. . . .”

Mutilation Comparison

“They’re like cutting off someone’s hands, or their testicles, or their female sexual organs.”

Calling the ruling “astonishing” and “amazing,” prosecutors predicted that it would be quickly overturned on appeal.

The U.S. attorney’s office said Hauk also ruled illegally by imposing two “split sentences”--consecutive sentences of six months each followed by five years’ probation. Only one split sentence can legally be imposed, prosecutors said.

Defense lawyers said they could not comment on the legality of the sentence. But they applauded Hauk’s sentiment in throwing out the statute that requires sentences of five years or 10 years, depending on the quantity of drugs, without possibility of parole and without regard to an individual defendant’s background.

“Perhaps he might have used very strong language to try to get his point across, but I felt that the judge spoke with a lot of conviction, and he spoke from the heart,” said Yolanda M. Barrera, chief deputy federal public defender here. “I applaud what the judge had to say about minimum mandatory sentencing and the effect that (it) has on an individual’s state of mind, on his possible rehabilitation or lack thereof.”

Several federal prosecutors were present during Monday’s hearing, and top officials of the U.S. attorney’s office were informed immediately after the proceeding ended. But none would comment on the case for attribution.

“It was really unbelievable,” one official said. “How many illegal ways can you impose a sentence?”

Hauk clarified the judgment on Tuesday, declaring that the defendant, Douglas Sharp, would be sentenced to five years should his ruling be overturned on appeal.

The sentence imposed by Hauk also requires Sharp to perform 500 hours of community service lecturing students “on the dangers of drug abuse and dealing drugs.”

Sharp, a music promoter and engine builder from Sacramento, was convicted of possessing with intent to distribute just under 5 kilograms of cocaine to undercover federal agents on Nov. 7, six days after the new sentencing guidelines went into effect.

The guidelines, which set up a narrow framework of allowable penalties for federal crimes in an attempt to limit disparity in sentencing, have been found unconstitutional by a variety of federal court judges--including a majority of the judges in Los Angeles.

A federal appeals court in San Francisco is expected to hear an appeal of similar rulings in two San Diego cases on Friday.

The Sharp case has been designated as the case that will go to the appellate court for review of the Los Angeles judges’ ruling--one of the few decisions in the country that rejects the guidelines on due process grounds.

Surprising New Issues

Hauk’s ruling on the unrelated issue of mandatory minimum sentencing injects new issues into the case that no one had anticipated.

Assistant U.S. Atty. James E. Berliner said the nation’s appellate courts have repeatedly upheld Congress’ authority to impose mandatory minimum sentences for designated crimes. The U.S. 9th Circuit Court of Appeals has also upheld the 1984 statute, though the court ruled on grounds other than the due process issue raised by Hauk, Berliner said.

A key point of confusion in Hauk’s ruling, according to Berliner and Assistant U.S. Atty. Thomas H. Bienert Jr., who tried the Sharp case, was the judge’s statement that one of the reasons he was throwing out the minimum sentencing provisions was that they came from the same 1984 law--the Comprehensive Crime Control Act--which called for establishment of the sentencing guidelines.

What Hauk appeared to be saying, Bienert said, was that all portions of the act--including provisions for minimum sentences, pretrial detention of federal prisoners and forfeitures of drug-related assets--may be unconstitutional because of the judges’ rulings on the small portion of the act that establishes the guidelines.

“It’s going to be our position that the guidelines were not part and parcel of all these other things that were done back in ‘84,” Bienert said.

Hauk declined to comment.