Many judges want more leeway in penalizing minor, non-violent
                     traffickers

                     By Jeremy Schwartz

                     As in all federal drug sentencing, there will be little leeway for a judge to
                     determine how many years Gabriel Rolando Rodriguez will spend in prison.

                     Rodriguez, who pleaded guilty to marijuana trafficking and money laundering
                     charges in October 2000, faces a minimum of 10 years and a maximum of life
                     in prison, pending any deals with prosecutors.

                     Depending on the amount of drugs a smuggler is convicted of distributing,
                     he is assigned a corresponding sentencing level. For example, 30 kilos of
                     cocaine corresponds to a Level 34 offense, equal to 12 years and seven
                     months to 15 years and eight months in prison for a first offense. Prior
                     criminal history can boost that prison time to as much as 27 years and three
                     months.

                     However, anything over five kilos, or about 11 pounds, of powder cocaine
                     triggers a 10-year mandatory minimum sentence without possibility of parole.

                     Copping a plea

                     "Our drug punishments are just very harsh and very rigid in the federal court
                     system," said U.S. District Judge Hayden W. Head Jr. of Corpus Christi. "So
                     there are a lot of people going to jail and going to jail for a long time."

                     But smugglers can avoid the mandatory minimum and lower their sentencing
                     level by cooperating with prosecutors and pleading guilty.

                     "Our goal is to go up the ladder," said Assistant U.S. Attorney Robert Galvan,
                     who says that of the 400 federal cases in Corpus Christi last year, two-thirds
                     were drug-related.

                     The vast majority of drug cases at the Corpus Christi federal courthouse and
                     around the nation end in a plea bargain, prosecutors say.

                     Like the informer in the Rodriguez case, each defendant is asked to give
                     names in return for lighter sentencing. Rodriguez was taken down by one of
                     his mules, or drug runners, who was stopped with 73 pounds of marijuana at
                     the Sarita Border Patrol checkpoint.

                     Cooperation pays

                     By cooperating with prosecutors, but not necessarily agreeing to testify
                     against others, a defendant can qualify for the so-called safety valve, worth
                     a reduction of two levels and a way out of the mandatory minimum.

                     A defendant who agrees to testify against his former co-conspirators can win
                     probation and a place in the witness protection program.

                     New sentencing guidelines instituted Nov. 1 allow judges to reduce a
                     smuggler's level by two points if prosecutors determine the smuggler is just
                     a mule, or courier in a larger organization.

                     Beyond these deals with prosecutors, judges have very little discretion in
                     sentencing drug smugglers. They can't take into account the defendant's
                     age, economic situation or family status and are bound by the higher
                     mathematics of the sentencing table.

                     Guideline critics

                     U.S. District Judge Robert W. Gettleman in Chicago said the guidelines are
                     far too severe, especially for the many young, non-violent offenders who are
                     not major players in drug organizations.

                     "The penalties for drug dealing are totally out of proportion with the
                     criminality," he said. "We are imposing sentences that should be reserved for
                     the worst criminals."

                     The guidelines, instituted during the get-tough-on-drugs days of the Reagan
                     administration, were meant to bring uniformity to the federal system as well
                     as reassurance to an alarmed public, said Myrna Cintron, a juvenile justice
                     professor at Prairie View A&M University.

                     "Legislators instituted the guidelines so we all look tough on crime, but the
                     end result is we have an overcrowded prison system," Cintron said.

                     Judge's judgment

                     Some federal judges say they feel hamstrung by the guidelines and especially
                     the mandatory minimums.

                     U.S. District Judge Janis Graham Jack of Corpus Christi said mandatory
                     minimums fail to take into account why someone decided to traffic in drugs
                     or what the impact of the crime was on society.

                     "Some of us would appreciate a little more discretion in applying the
                     guidelines," she said.

                     Gettleman said that some offenders would be better served by treatment
                     programs or boot camp - something that's rarely a possibility under the
                     guidelines.

                     Different rules

                     The federal court system varies dramatically from the state court system,
                     where juries and judges have much more leeway in assigning sentences.

                     A smuggler funneled into the state system could conceivably get probation
                     from a sympathetic jury or judge for the same amount of drugs which would
                     result in a mandatory 10 years in prison in federal court.

                     Further complicating the picture, there are no clear guidelines as to what
                     lands a smuggler in federal or state court. In some cases, the determining
                     factor is the weight of the drugs.

                     At the Falfurrias Border Patrol station, all powder cases and marijuana busts
                     over 140 pounds are handled by the Drug Enforcement Administration and
                     funneled into the federal system, Border Patrol agents say. Smaller cases
                     land smugglers in the Brooks County Courthouse, where federal agents say
                     punishments can be much lighter.

                     At the Sarita checkpoint, Border Patrol officials say the weight limit is
                     generally 250 pounds of marijuana, but that sometimes DEA declines to take
                     those cases.

                     Faith in the system

                     Jack laments the fact that the flow of drugs seems unabated despite
                     buildup of law enforcement in South Texas, and she said more attention
                     needs to be focused on addressing the country's demand for drugs.

                     "At some point you have to address the use of drugs and that's not for the
                     judiciary, I don't believe," she said.

                     Another view

                     Judge Jim Gray, a Republican Superior Court Judge in Orange, Calif., said he
                     decided in 1992 that the current system was wrong, after marching
                     countless non-violent drug offenders to heavy prison terms. The nation's
                     drug problem, he said, has not gotten better despite harsh sentencing laws
                     and the vast amounts of money used to fight trafficking.

                     "I just couldn't look at myself in the mirror," Gray said. "I'm a conservative
                     and I thought my message would be heard. It's certainly not a professional
                     benefit."

                     Gray said government regulation of currently illegal drugs would drop the
                     nation's crime rate by 60 percent, as happened after the end of Prohibition
                     of alcohol.

                     Such a move would also free up the billions of dollars spent on fighting the
                     drug war as well as end the massive incarceration rate for drug users.

                     Legalization

                     And while Gray said there would no doubt be an initial boom in the number
                     of drug users after regulation, once the novelty and glamour wears off, the
                     number of users would stabilize.

                     "Politicians are still able to use the trump card that we're waving the white
                     flag, giving in to drugs," he said. "They say they're doing it for the children.
                     That's a crock. Our present system is putting children in harm's way. It's
                     easier to find illegal drugs than a 6-pack of beer."

                     Judge Gilbert S. Merritt, a United States Court of Appeals Justice in Nashville,
                     said that after 25 years as a judge, he favors experimenting with legalization
                     in certain states or areas.

                     "I just have the general feeling that what we're doing here is running into
                     the same problems as with Prohibition - but with longer sentences," he said.

                     Generation of addicts

                     Merritt said one of the main arguments against legalization - that we will
                     create a new generation of addicts - deserves to be tested.

                     "You ask yourself, 'Could there be a better way?' It seems to me we
                     haven't really tried anything else," he said.

                     Gray has outlined his argument in a book called "Why Our Drug Laws Have
                     Failed and What We Can Do About It: A Judicial Indictment of the War on
                     Drugs." His views were endorsed by 40 state and federal judges throughout
                     the country, including Merritt. Like Gray, Merritt said a number of fellow
                     judges question the current system.

                     "All you need to do is legitimize the discussion," Gray said. "Once you do
                     that, the whole War on Drugs is over because it simply can't stand the
                     scrutiny."

                    Contact Jeremy Schwartz at schwartzj@caller.com