Softening sentences, losing leverage

Softening sentences, losing leverage

Some prosecutors fear the consequences of weakening mandatory minimums for drug convictions


Published on October 31, 2015

In Portland, Ore.

When the judge entered the wood-paneled courtroom to begin the sentencing hearing this fall, 19-year-old Morgan Brittain was the only one who didn’t stand. She remained seated in her wheelchair in the front row.

Brittain looked in many ways like the girl she once was: Nike sneakers with hot pink laces, nails painted maroon and silver. She still had the slender frame of the dancer and runner she was before she overdosed two years ago on a half a gram of heroin she split with a friend.

UNWINDING THE DRUG WAR:
This story is the seventh in a continuing series about the legacy of the war on drugs and efforts to reduce the nation’s prison population.
Click to read Part I: The painful price of aging in prison

Click to read Part II: Against his better judgment

Click to read Part III: From a first arrest to a life sentence

Click to read Part IV: Unlikely allies push for sentencing reform

Click to read Part V: Out of prison, slow steps to freedom

Click to read Part VI: In Calif., A ‘virtual get-out-of-jail-free card’

Click to read Part VIII: Struggling to fix a ‘broken’ system

The drugs had done serious harm. A younger cousin had to read Brittain’s statement to the judge on her behalf:

“I constantly feel like a burden on everyone because of all the things I can’t do: walk, talk easily, feed myself, bathe myself, drive, draw or even write this statement out. . . . The damage it has caused to my family and I is too much to even begin to describe.”

Brittain and her family had come to court to face German Tovar-Ramos, a man authorities described as a key supplier in the organization that sold the heroin to Brittain’s friend.

Within days, police arrested Tovar-Ramos because investigators and prosecutors had threatened people on lower rungs of the organization with stiff mandatory sentences: A girl is on life-support, they said; help us get to the higher-level traffickers, or you could end up in federal court facing 20 years in prison.

In court, prosecutors portrayed Tovar-Ramos as a high-level drug dealer who moved pounds of heroin every week. His defense attorney argued that his client was no more than a glorified delivery boy, and certainly not a kingpin.

When it was his turn to speak, Tovar-Ramos rose to apologize, dressed in a gray-striped county jail uniform. “I am very sorry about everything I have done to this family,” he said in Spanish, looking straight ahead at the judge. “I was simply trying to help out my own family.”

The story of how Tovar-Ramos was apprehended illustrates how heavily prosecutors rely on mandatory minimum sentences to take down drug networks. But this leverage could soon be diminished because of concerns that it has been used too liberally to lock up low-level nonviolent offenders who face punishments that are much more severe than their crimes.

Video: 'She wanted to use one more time': Morgan Brittain's painful reality

Play Video

Morgan Brittain suffered serious brain damage after overdosing on heroin in 2013. Now 19, she lives with her grandparents and can't walk or feed herself. Brittain's grandmother and her 16-year-old cousin give The Post a glimpse into their daily lives, forever changed. (Nikki Kahn, Nicki DeMarco)

A broad coalition — including President Obama, Koch Industries, the American Civil Liberties Union and some police chiefs and district attorneys — is calling for the country to recalibrate the scales of justice, especially when it comes to the harsh drug sentences that have driven a decades-long surge in the U.S. prison population. Many advocates say that the war on drugs has led to needlessly long prison terms. The policies have disproportionately affected minority communities, since so many of those incarcerated have been black or Latino.

Legislation introduced this month in the House and Senate would shorten the length of some mandatory minimums created beginning in the 1980s and would give judges more leeway in sentencing. The Senate version was recently approved by the Judiciary Committee, but no vote has been scheduled yet.

Defense attorneys and others pushing to reduce mandatory sentences say that the threat of decades in prison leaves defendants without a choice at the plea bargaining table. Advocates for sentencing reform have also said that judges should have the flexibility to better match prison sentences with the threat defendants pose to public safety.

Deputy Attorney General Sally Quillian Yates has expressed the administration’s support for legislation to reduce some mandatory penalties and said prosecutors and investigators could still effectively do their jobs without such sentences.

But some prosecutors and other law enforcement officials are lobbying against the changes, saying the legislation will make it harder for them to dismantle criminal organizations or uncover other crimes, including homicides.

“The leverage, the hammer we have comes in those penalties,” said federal prosecutor Steven H. Cook, who is part of a group of law enforcement officials who oppose the sentencing reform legislation. “It is the one and only tool we have on the other side.”

In Oregon, federal prosecutors said they had no interest in taking sides in a politically sensitive policy debate. They agreed, however, to talk specifically about how and why they have repeatedly relied on mandatory prison sentences to respond to a heroin epidemic that nationally accounts for more than 8,250 overdose deaths a year.

Morgan Brittain was nearly one of them.

Larry Linenko struggles to pick up his 19-year-old granddaughter, Morgan Brittain, as he helps put her in his pickup truck to drive her to a physical therapy appointment. | Ann Linenko, an addiction counselor, administers one of three daily feedings of food and medicine to her granddaughter. | Brittain has trouble bathing herself and often gets assistance from her cousin.

In May 2013, Brittain was a junior in high school, struggling with addiction just as her mother had. After two months at an in-patient treatment program, she was excited about coming home to her grandmother’s house on a weekend pass.

That night, after a few text messages back and forth with a friend, Brittain paid her $45 for part of a plastic bag containing half a gram of black tar heroin, the size of a pencil eraser. Then she smoked it.

Photo gallery

Brittain, right, with her brother, cousin and little sister in May 2013, the day before she overdosed. Click the above photo for more images. (Courtesy of the Brittain family)

Brittain’s grandmother, Ann Linenko, awoke on Mother’s Day to the crying screams of her two young grandchildren. They had found Brittain unconscious on the bedroom floor. Her lips were purple. She would spend the next four months in a coma.

Brittain was not expected to live. Her family was days away from taking her off a respirator. Slowly, that August, she began to regain some brain function.

By then, law enforcement officials had already figured out the source of the heroin.

On the morning of her overdose, police relied on the text messages and interviews with Brittain’s family to track down the friend who provided the drug.

The friend pointed police to the street-level dealer, who was arrested the next day after a drug sale monitored by police.

What matters most in these cases is not the amount of drugs sold, but that a person died or was seriously harmed from the drugs that came from a specific dealer. Investigators quickly leapfrog up the organization because the low-level players are willing to cooperate when they learn about the 20-year-mandatory penalty, a potent provision of the anti-drug trafficking law.

Congress created the 20-year mandatory minimum penalty in 1986 just months after University of Maryland basketball star Len Bias overdosed on cocaine. The provision, informally named after Bias, allows prosecutors to implicate an entire drug-trafficking enterprise — every step up the ladder from street dealer to supplier — if they can determine that the drugs the operation sold caused the overdose.

Proving that an overdose is the result of a particular drug from a specific dealer is often difficult. Local police must investigate fatal overdoses as potential homicides, collecting cellphone data, fingerprints and other evidence. The medical examiner is quickly called in to determine the likely cause of death.

Four days after Brittain’s overdose, police arrested Tovar-Ramos after watching him attempt to deliver a paper bag containing about three pounds of heroin worth more than $45,000. After they found a digital scale and red notebook listing drug sales while searching his apartment, police arrested two others.

In all, four men were hit with two charges that carried mandatory federal sentences: 10 years for a conspiracy that involved 1 kilo or more of heroin and 20 years for the connection to an overdose. Prosecutors said the organization was responsible for distributing a total of 50 kilos, or enough heroin for an estimated 500,000 individual hits.

How prosecutors retraced the heroin distribution chain

After Morgan Brittain overdosed, prosecutors used the possibility of stiff federal mandatory minimum penalties as leverage to quickly get low-level dealers to flip on those higher up the chain. Each dot below

( ) represents 1 gram of heroin to show the amount that prosecutors estimated each person possessed.

Victim

Brittain, then 17, paid $45 for a ½ gram of heroin that she split with a friend. Two years after her overdose, she struggles to stand, talk and swallow.

Less than ½ gram

Friend

From text messages and interviews with Brittain’s family, police were able to find the friend who purchased the heroin.

The friend identified the street dealer.

½ gram

Street dealer

The next day, agents arrested the

street dealer, who told investigators that he routinely bought “8-ball” quantities of heroin, delivered by a runner.

 

3½ grams

Runner/courier

Federal agents then arrested the drug runner, who prosecutors said distributed heroin to several low-level dealers every week.

 

284-567 grams

per week

cHARGED AT STATE LEVEL

cHARGED AT FEDERAL LEVEL

Regional dispatch

organization

The two leaders of the

dispatch operation told law enforcement that they paid $30,000 per heroin shipment every week for a year.

More than 1 kg per week

1 kg

Bulk suppliers

Prosecutors identified German Tovar-Ramos and his roommate as bulk suppliers, and Tovar-Ramos was arrested after he attempted to deliver a bag containing more than

1 kilogram of heroin. Prosecutors estimated that he delivered approximately 1 kilogram a week for a year to the dispatch organization for a total of 50 kilograms of heroin.

 

Estimated at 50 kg

Source: Court documents filed by the Oregon

U.S. Attorney's Office

KEVIN UHRMACHER/THE WASHINGTON POST

How prosecutors retraced the

heroin distribution chain

After Morgan Brittain overdosed, prosecutors used the possibility of stiff federal mandatory minimum penalties as leverage to quickly get low-level dealers to flip on those higher up the chain. Each dot below ( ) represents 1 gram of heroin to show the amount that prosecutors estimated each person possessed.

Victim

Friend

Street dealer

From text messages and interviews with Brittain’s family, police were able to find the friend who purchased the heroin. The friend identified the street dealer.

Brittain, then 17, paid $45 for a ½ gram of heroin that she split with a friend. Two years after her overdose, she struggles to stand, talk and swallow.

The next day, agents arrested the street dealer, who told investigators that he routinely bought “8-ball” quantities of heroin, delivered by a runner.

 

3½ grams

Less than ½ gram

½ gram

Runner/courier

Federal agents then arrested the drug runner, who prosecutors said distributed heroin to several low-level dealers every week.

 

284-567 grams per week

cHARGED AT STATE LEVEL

cHARGED AT FEDERAL LEVEL

Regional dispatch organization

The two leaders of the dispatch operation told law enforcement that they paid $30,000 per heroin shipment every week for a year.

More than 1 kg per week

1 kg

Bulk suppliers

Prosecutors identified German Tovar-Ramos and his roommate as bulk suppliers, and Tovar-Ramos was arrested after he attempted to deliver a bag containing more than 1 kilogram of heroin. Prosecutors estimated that he delivered approximately 1 kilogram a week for a year to the dispatch organization for a total of 50 kilograms of heroin.

 

Estimated at 50 kg

Source: Court documents filed by the Oregon U.S. Attorney's Office

KEVIN UHRMACHER/THE WASHINGTON POST

How prosecutors retraced the heroin distribution chain

After Morgan Brittain overdosed, prosecutors used the possibility of stiff federal mandatory minimum penalties as leverage to quickly get low-level dealers to flip on those higher up the chain. Each dot below ( ) represents 1 gram of heroin to show the amount that prosecutors estimated each person possessed.

Victim

Friend

Street dealer

Runner/courier

From text messages and interviews with Brittain’s family, police were able to find the friend who purchased the heroin. The friend identified the street dealer.

Brittain, then 17, paid $45 for a ½ gram of heroin that she split with a friend. Two years after her overdose, she struggles to stand, talk and swallow.

The next day, agents arrested the street dealer, who told investigators that he routinely bought “8-ball” quantities of heroin, delivered by a runner.

 

Federal agents then arrested the drug runner, who prosecutors said distributed heroin to several low-level dealers every week.

 

284-567 grams

per week

Less than ½ gram

½ gram

3½ grams

cHARGED AT STATE LEVEL

cHARGED AT FEDERAL LEVEL

1 kg

Regional dispatch

organization

Bulk suppliers

Prosecutors identified German Tovar-Ramos and his roommate as bulk suppliers, and Tovar-Ramos was arrested after he attempted to deliver a bag containing more than

1 kilogram of heroin. Prosecutors estimated that he delivered approximately 1 kilogram a week for a year to the dispatch organization for a total of 50 kilograms of heroin.

 

The two leaders of the dispatch operation told law enforcement that they paid $30,000 per heroin shipment every week

for a year.

More than 1 kg per week

Estimated at 50 kg

Source: Court documents filed by the Oregon U.S. Attorney's Office

KEVIN UHRMACHER/THE WASHINGTON POST

In court, Tovar-Ramos’s attorney argued that prosecutors were overstating his client’s role in the drug supply chain. He was not out recruiting new customers. He didn’t package or weigh the drugs or count the money.

Tovar-Ramos, called “Gordito” by his friends, was an undocumented immigrant who had come to the United States from Mexico as a teenager with a sixth-grade education. He worked on farms and as a roofer in California to send money to his family. In Las Vegas, he became addicted to cocaine and began selling drugs to support his habit, according to court records.

Police were able to arrest one supplier, German Tovar-Ramos, just four days after Brittain’s overdose. The Washington Post was not permitted by jail officials to photograph him. (Columbia County Sheriff's Office)

He was arrested twice in less than two years for selling small amounts of cocaine and heroin. He spent a total of 15 months in custody for both convictions and was deported in 2008.

Back in Mexico, Tovar-Ramos found work at a Puerto Vallarta hotel that paid about $100 a week. He returned to the United States to pick strawberries on an Oregon farm. When the season ended, he was offered $500 a week — plus a car, phone and place to live — to work as a drug courier for the organization that would supply Brittain with the heroin that almost killed her, according to court records.

Tovar-Ramos was paid the least but took on the highest risk, his lawyer Thomas K. Coan said in court. Tovar-Ramos’s roommate was paid twice as much, according to the defense, and the general manager of the operation earned $5,000 per week.

In the past two years, Coan has represented at least three defendants in heroin overdose cases. He is impressed with but not surprised by how quickly investigators move up the chain in an organization.

“It scares the pants off anyone who is looking at that amount of time,” Coan said. “The police know the law and the hammer it holds for them.”

In courtrooms throughout the country, about 97 percent of people accused of committing federal crimes plead guilty instead of going to trial, where prosecutors would have to prove their cases beyond a reasonable doubt.

The case involving Tovar-Ramos was no different.

During negotiations with Tovar-Ramos, prosecutors agreed not to seek the 20-year mandatory sentence. All four men would eventually plead guilty to the conspiracy charge that carried a 10-year mandatory penalty because it involved 1 kilo or more of heroin.

But, at his sentencing hearing, prosecutors were allowed to ask for more than double the time — nearly 22 years — for Tovar-Ramos. He had two prior drug convictions and had acknowledged the connection to the overdose. Tovar-Ramos also had not helped prosecutors with their case, so he did not qualify for a formal sentence reduction.

FOUR THINGS TO KNOW ABOUT MANDATORY MINIMUMS: The goal: Prosecutors have long used the leverage of stiff mandatory minimum sentences to flip lower-level drug dealers to take down higher-level criminals.

The history: Created by Congress beginning in the 1980s, the mandatory penalties took discretion away from judges and fueled the major increase in the U.S. prison population.

The push (to reduce them): Advocates for overhauling the criminal justice system want to reduce mandatory minimums that they say have meant needlessly long sentences for low-level, nonviolent drug offenders. Legislation being debated on Capitol Hill, and backed by a bipartisan coalition that includes President Obama and Koch Industries, would soften some mandatory penalties.

The pushback (to keep them): Some prosecutors are lobbying against the legislation, concerned that it will make it harder to secure cooperation to dismantle drug networks.

At the Senate Judiciary Committee hearing earlier this month, deputy attorney general Yates said that the “prospect of a lengthy sentence certainly provides a powerful incentive for a defendant to cooperate, but I don’t think that it has to be a mandatory minimum sentence.” Mandatory penalties, she said, are “most effective when they are targeted at the most serious crimes and at the most serious offenders.”

She also pointed to the department’s change in policy two years ago: Former attorney general Eric H. Holder Jr. directed prosecutors not to charge lower-level, nonviolent drug dealers with certain drug offenses that carry severe mandatory sentences. Since the 2013 Holder memo was issued, Yates said, defendants have continued to plead guilty at the same rates.

But Cook, the head of the National Association of Assistant United States Attorneys, said the rates of cooperation have not changed in part because mandatory sentences are still in play as leverage in negotiations. The Holder memo, he said, has been interpreted differently by individual prosecutors, sometimes in the same office.

Defense attorneys “understand that this tool is still in our pocket,” Cook said.

The legislation under consideration in Congress would not modify the 20-year mandatory penalty that applies in overdose cases. But Cook’s group says the bills would undercut the threat of a 10-year mandatory minimum for a kilo or more of heroin, for instance, because a judge would have the discretion to drop the sentence to five years for certain defendants.

For Portland-based federal prosecutor Kathleen Bickers — who has handled most of the office’s 41 overdose cases involving 76 defendants — the mandatory minimum sentences are not merely part of a strategy for securing cooperation in her cases.

Prosecutors in the Oregon U.S. attorneys’ office said they do not want to be perceived as heavy-handed bullies or as arbitrary in their charging decisions.

Under the law, someone like supplier Tovar-Ramos has not committed a violent crime. But Bickers and her colleagues believe that those who supply dangerous drugs like heroin are in essence doing violence against people, wrecking families and communities, and deserve harsh sentences.

“Those who deal in heroin deal in death. They need to know that we’re not going to tolerate this,” Assistant U.S. Attorney Steven T. Mygrant said after the sentencing hearing in September at the towering courthouse in downtown Portland.

“Morgan Brittain is paying a much worse price than any drug dealer with a stiff sentence.”

Criminal defense attorney Thomas K. Coan leaves the Columbia County Jail after meeting with his client, Tovar-Ramos. He argued that his client did not need to spend two decades in prison to learn a lesson. | Assistant U.S. Attorneys Steven T. Mygrant and Kathleen Bickers pose for a portrait inside the courthouse. “The drug trade is inherently a very violent operation,” said Bickers, who has handled most of the office’s 41 overdose cases.

Mygrant had recommended that Tovar-Ramos be sentenced to more than 21 years.

Coan, the defense attorney, told the judge that his client did not need to spend two decades in prison to learn a lesson.

Five, 10, 15 years in prison, he said later, would not change the nation’s drug problem or reduce demand for heroin. He doubted that such a long sentence would deter other men like Tovar-Ramos from making the same journey from Mexico in search of easy cash. More than 20 percent of federal prison inmates are non-U.S. nationals. Nearly half are doing time for drug-related crimes.

Coan also pointed out that two other participants in the drug ring — all higher up the chain than Tovar-Ramos, he said — had received shorter sentences than what prosecutors were asking for his client. One of those men didn’t have his record; the other had cooperated.

U.S. District Judge Anna J. Brown was clearly moved by the presence in the courtroom of Brittain and her family, a circumstance she called “heartbreaking.”

No matter the sentence or amount of money the men involved would have to pay in restitution to the family, Brown said, it “can’t really in any way make whole the family’s losses here.”

When the judge turned her attention to Tovar-Ramos, she took into consideration how his less serious earlier convictions for dealing drugs in Nevada had driven up the formula for determining his sentence.

But the judge was also firm in rejecting the argument that Tovar-Ramos’s smaller share of the profits made him any less culpable for Brittain’s overdose.

“Not one of these defendants would say he intended this kind of harm,” said Brown, who was appointed to the bench by then-President Bill Clinton in 1999.

“The harm doesn’t change,” she continued. “A young user was seriously injured, and Mr. Tovar-Ramos is as responsible as the others in this group.”

The final judgment: 17 years, 6 months.

The judge wished Brittain and her family well. Tovar-Ramos waited to be shackled and returned to jail, where he would be assigned to a federal prison.

Sari Horwitz contributed from Washington.

Brittain sits outside her grandparents' home in a suburb of Portland, Ore. Two years after her overdose, she has re-enrolled in high school and is on track to graduate.

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