No. 1 in nation for “Draconian,” mandatory drug sentencing


Judge Michael McCuskey is outspoken in his criticism of enhanced mandatory sentencing guidelines imposed by the federal prosecutors office in Springfield for the central judicial district of Illinois. (PHOTO BY CLARE HOWARD)

Once again, Peoria tops a nationwide list –– this time for harsh sentences for nonviolent drug offenders. Many in the judicial system contend these disproportionally harsh sentences do not make society safer but only serve to feed mass incarceration.

Federal prosecutors can impose “enhancements” that compel federal judges to double mandatory sentences. In some case involving a first-time, nonviolent drug conviction with imposed enhancements, the mandatory minimum sentence is 10 years to a maximum sentence of life.

The Central District of Illinois, including Peoria, Springfield, Rock Island and Urbana, is highest in the nation for enhanced charges against nonviolent drug offenders, according to a report by the U.S. Sentencing Commission.
In the Central District, 74.6 percent of eligible cases receive enhanced charges compared with 12.3 percent nationwide.

Cases in the Central District of Illinois are prosecuted through the office of the U.S. Attorney in Springfield. John C. Milhiser was appointed U.S. Attorney for the Central District six months ago. He followed Jim Lewis who held the position for the previous eight years. The Central District of Illinois has ranked among the top nationwide calling for enhanced sentencing under the tenure of both men.

The office did not respond to a request for an interview and did not issue a statement for this article.

Thomas Patton, chief federal public defender in Peoria, said he was arguing a case before Judge James Shadid about the unfair imposition of enhanced sentencing on his client when the U.S. attorney arguing the case jumped up and said enhancements should be imposed 100 percent of the time.

Patton practiced in the Western District of Pennsylvania for 15 years and said enhanced sentences were less frequently imposed there.

Patton said cases end up in federal court rather than state court by “pure random chance” and federal cases receive far harsher sentences. He said more severe sentences for crack cocaine versus powder cocaine are based on “flawed science.”

“Harsher treatment is dealt to impoverished communities,” Patton said.

Judge Michael McCuskey, a critic of the system he was once coerced to enforce, said, “Enhanced convictions do not make Peoria safer.”

For the first time in his judicial career, McCuskey feels free to state clearly, in public, on the record just what he thinks of federal minimum sentencing guidelines for nonviolent drug trafficking –– work to eliminate them; vote for federal legislators and a president who pledges to do the same.

“I could not give a kid a break –– an 18-year-old kid and his first drug transaction and he gets a longer sentence than (Paul) Manafort,” McCuskey said. “These drug cases are the low-hanging fruit. Easy to prosecute. We treat white collar crime more leniently.”

The same drug case in state court could result in probation, he said, noting that the longer the sentence, the harder it becomes to get a job after release from prison.

McCuskey was a federal judge in the U.S. Central District from 1998 to 2014 and is now a state judge in the 10th Judicial District of Illinois.

He said 90 percent of his cases as a federal judge fell under mandatory minimum sentencing guidelines.
The guidelines are illogical, remove all discretion and mitigating circumstances from sentencing decisions and impose an enormous tax burden on the public, he said.

The American judicial system has morphed into the most punitive and expensive in the world. Even as chief judge, McCuskey said he was unable to change the system.

He was half way through his career as a federal judge when he started looking for options and a way out. He retired from the federal system in April 2014.

“I retired because I was tired of the sentencing guidelines,” he said.

Now in the state court system, he handles personal injury, medical malpractice and contractual law.

Mandated minimum sentencing “was discouraging, but now I have the opportunity to do something about it. We need to change the sentencing system,” he said.

Change will require agreement on the part of the U.S. Senate and the White House.

The Senate controls appointments to the U.S. attorney for each region.

McCuskey said some politicians are fearful of appearing soft on crime by favoring changes to mandatory minimum sentences.

There was an opportunity with President Bill Clinton and again with President Barack Obama to change the sentencing guidelines but health care pushed criminal judicial reform off the agenda.

Under Obama, U.S. Attorney General Eric Holder implemented changes to allow more individualized assessments, but Jeff Sessions, the tough-on-crime attorney general under Donald Trump, revoked those provisions.

McCuskey said voters must take ownership of this issue and vote for change.

George Taseff, senior litigator with the federal public defender’s office in Peoria, said enhanced sentencing is “Draconian.”

“We are far and away the stiffest and most severe district in the country when it comes to federal prosecutors enhancing sentences based on prior convictions, many for nonviolent drug matters. It skews the sentences required to be imposed,” he wrote in an email. “There is a reason why Judge McCuskey had to impose these ridiculously crazy sentences because federal prosecutors use that provision and double mandatory minimums and put these young men and women in such terrible terrible circumstances so the judge has to give 20 years minimum to someone who in state court would be eligible for much lower sentences.”

McCuskey said a first offense for crack cocaine in federal court could get a five-year sentence while the same offender could get probation in state court.

“I see these sentences dramatically disproportional than those in state court,” he said.

The most recent report by the U.S. Sentencing Commission found enhancements most significantly impacted African Americans. The report states Black offenders comprised 42.2 percent of cases eligible for enhanced sentencing but 51.2 percent of the cases in which enhancements were imposed.

Federal Judge Mark Bennett was on the bench in the Northern District of Iowa, also among the top districts in the country for enhanced, harsh sentencing. He is now director of the Institute for Justice Reform and Innovation at Drake University Law School in Des Moines.

In a judicial opinion on enhanced drug sentencing, Judge Bennett characterized enhancements as “a deeply disturbing, yet often replayed, shocking, dirty little secret of federal sentencing: the stunningly arbitrary application by the Department of Justice” on the drug sentencing enhancements.

In one comparison, he found eligible defendants in the Northern District of Iowa had “a whopping 2,532 percent” greater likelihood of receiving enhanced sentencing as a similar defendant in the District of Nebraska.
He wrote the enhancements are “both whimsical and arbitrary –– something akin to the spin of a ‘Wheel of Misfortune.’”

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