By Trevor Bach
By Francisco Alvarado
By Trevor Bach
By Michael E. Miller
By Allie Conti
By David Villano
By Jose D. Duran
By Michael E. Miller
"The Triggerlock cases we're getting are a joke," declares federal public defender Jim Gaylie, whose office defends 80 percent of all criminal charges that reach federal court. "And the number of dismissals and acquittals we're getting reflects that." Statistics from the U.S. Attorney's office indicate that during fiscal year 1991 prosecutors secured pleas or guilty verdicts in 95 percent of their criminal indictments. But when Gaylie's office randomly compiled 45 of the estimated 60 Triggerlock cases handled last year, the results were stunning: thirteen resulted in acquittals or dismissals, seventeen in guilty verdicts or pleas. (Fifteen were as yet unresolved.)
Jon Weyman, the assistant U.S. attorney who just last month took charge of Operation Triggerlock, declines to discuss specific cases, citing Department of Justice guidelines. "Sometimes a charge is not thoroughly enough investigated and new evidence does emerge," he concedes. "But even before Triggerlock started, our policy as an office was to be aggressive in trying to protect the community. There are many offices across the country that might not charge on weaker cases. We'd rather safeguard the community and take the occasional acquittal." Indeed, according to Gaylie's figures, under former Acting U.S. Attorney Dexter Lehtinen, federal prosecutors lost 24 percent of their trials from June 1990 to August of 1991, double the national average.
But Gaylie, a federal prosecutor himself from 1982 to 1986, insists Operation Triggerlock represents more than gung ho prosecuting: "It's the most recent example of what happens when you give limitless power to police and prosecutors. Bust first and ask questions later. Or don't ask them at all."
Gaylie contends the program is the latest indicator of a radical shift in the criminal justice system that started with the Comprehensive Crime Control Act of 1984. That sprawling bill, hurriedly passed by legislators anxious to appear tough on crime in an election year, established a commission to formulate mandatory sentencing guidelines that would guarantee uniformity of punishment throughout the federal courts. The measure also called for the elimination of parole in federal sentencing and implemented several mandatory minimum sentences.
While the commission quietly drew up its Byzantine sentencing charts, the crack cocaine crisis exploded into the headlines in 1986, with the death of University of Maryland basketball star Len Bias. Ronald Reagan hammered away at his newly coined War on Drugs, and legislators, gauging the rumble of public opinion, decided to pre-empt the commission by passing still more mandatory minimum sentences, mostly for drug-related crimes. Today, despite the vociferous objections of criminal defense attorneys, federal judges, and the sentencing commission itself, all mandatory minimums remain in place.
"The idea has been that if we're tough enough on drugs and crime, we can make them go away," says Marc Mauer, a policy analyst at the Sentencing Project, a Washington D.C.-based group. Instead, he says, the United States has overtaken Russia and South Africa as the world's leading incarcerator, with 1.2 million inmates, more than double the figure a decade ago. Beefed-up federal jurisdiction over violent and drug-related crimes, coupled with the mounting number of trials made necessary by mandatory sentences, have clogged the federal court, Mauer says, and spurred judges to complain that they don't have the time to try civil cases. Mauer says federal prisons contain one and a half times the number of inmates they were designed to hold, and according to figures kept by the Bureau of Prisons, the prison population will double by the year 2000. "On the upside," Mauer deadpans, "prison construction has become a leading growth industry."
One of the little-known mandatory minimums included in the original 1984 crime act was a fifteen-year sentence to any felon possessing a firearm, if that person previously had been convicted three times of violent or serious drug offenses. (Under federal statutes, violent crimes include any offense, from burglary to murder, "that presents a serious potential risk of physical injury to another." Serious drug offenses are defined as those that carry a maximum sentence of ten years or more.)
In 1986 the U.S. Bureau of Alcohol, Tobacco and Firearms (ATF) initiated Operation Achilles, an ambitious federal program intended to strike at the "Achilles heel" of felons by reviewing all arrests involving possession of a firearm and charging selected suspects whose records qualified them as armed career criminals. Prosecutors enjoy two advantages by bringing a case in federal court: first, parole-free sentences that result in more prison time than state-court convictions; and second, discovery laws that severely limit defense lawyers' pretrial access to the prosecution's evidence and witnesses.
"Our intention is to target the worst of the worst and take them out of circulation," explains Paul DuCuennois, group supervisor for the Armed Career Criminal Program at ATF's Miami office. "Our statistics showed an inordinate number of violent crimes committed by a small percentage of criminals, guys who were moving in and out of the state system." In four years, DuCuennois says, Dade police, ATF agents, and federal prosecutors have joined forces to put more than 100 career criminals behind bars, and earned his office national recognition as a model Achilles program.
In response to ATF's Achilles, the Justice Department last April launched its own special program, Operation Triggerlock, aimed at solidifying federal prosecutors' commitment to pursue gun cases. While the number of Triggerlock cases remains small, officials hope to broaden the plan's scope dramatically. The Justice Department's 1991 manual outlines a plan to monitor current and recently released state prisoners for potential Triggerlock defendants. Republican Sen. Alfonse D'Amato of New York, meanwhile, recently proposed a bill that would federalize all crimes committed with guns and impose a five-year minimum sentence.