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April 3, 2007 - News Journal (DE)

Ex-FBI Chief: Relax Delaware Drug Sentence Laws

House Bill Would Repeal 'Mandatory Minimums'

By Maureen Milford, The News Journal

Return to Drug War News: Don't Miss Archive

Louis J. Freeh, the nation's former top cop and a self-described "law enforcement guy," is leading an effort in Delaware to repeal state laws that require minimum prison terms for convicted drug offenders.

"Some people told me I'd be one of the last people they thought they'd see" pushing this initiative, said Freeh, who was FBI director from 1993 to 2001 and then served as general counsel to the former MBNA credit card bank until 2005.

Freeh, of Greenville, a former federal judge, agreed to become chairman of Stand Up for What Is Right and Just late last year. The 7-year-old organization supports legislation in the General Assembly that calls for an end to Delaware's mandatory minimum drug sentencing laws. House Bill 71 is expected to come up for debate in the House today.

Board members of SURJ (pronounced "surge") include some prominent Delaware lawyers and jurists, including Edmund N. "Ned" Carpenter II and retired Supreme Court Justice Joseph T. Walsh. Former Delaware Attorney General Charles M. Oberly III is a trustee of the organization. The group of about 3,100 people includes leaders from government, churches, business, labor and nonprofit organizations.

Freeh said he got involved with SURJ based, in part, on his experience as a federal judge. He recalled having to sentence 20-year-old offenders who were drug users -- but not dealers -- to nearly two years in prison.

"And they will come out hardened" by the prison system, Freeh said.

Stephen Gillers, a professor at New York University School of Law, who is familiar with Freeh as a former assistant U.S. attorney and federal judge for the Southern District of New York, said he is seen as a moderate in criminal justice circles.

Freeh's willingness to make public statements on the repeal of minimum sentencing laws will be effective opposition to tough-on-crime advocates, Gillers said.

"It will probably annoy some of his former colleagues," Gillers said. Gillers said he knows people in the law enforcement community and anti-drug organizations who disagree with Freeh's stance.

Sentences Said To Help Police

Delaware Attorney General Beau Biden has said he is against the repeal. State Prosecutor Richard Andrews testified before the House Judiciary Committee in late February that the threat of a mandatory minimum sentence can help police investigators get additional information about illegal drug trafficking.

"The attorney general does agree with the state prosecutor's earlier testimony that the threat of mandatory minimums is a valuable tool that aids police in obtaining additional information from suspects," according to Jason Miller, spokesman for the Delaware Department of Justice.

The Delaware Police Chiefs Council also favors minimum sentences, saying the system provides equal sentencing regardless of social standing or race.

Bruce Green, a former New York assistant federal prosecutor and now director of the Louis Stein Center for Law and Ethics at Fordham University School of Law, said people with Freeh's "knowledge and credibly ought to weigh in" on these issues.

"He obviously, in the course of all the work he's done, developed well-informed views, and he's now in a position to speak," Green said.

Former Gov. Dale Wolf, who was the chairman of SURJ before Freeh, agrees.

"Just the fact that Louis has enough interest in a local issue and is willing to take the leadership shows his commitment," Wolf said.

Carpenter, a retired trial lawyer, said Freeh's involvement is important because it shows that law enforcement is not unanimous on the issue of mandatory minimum sentences.

Tiny Amounts Can Make Difference

Under Delaware's mandatory minimum sentencing laws for drug offenses, a quantity of an illegal substance equivalent to a few packets of artificial sweetener can be enough to trigger a minimum prison sentence, Freeh wrote in a letter in support of H.B. 71.

"Take one [packet] away and no mandatory minimum applies," Freeh wrote. "Add one and an addict faces a long term of imprisonment."

In a strong and robust judicial system, judges have the authority to craft sentences on a case-by-case basis, he said. Now, prosecutors are making the decision, upsetting the balance of power, Freeh said.

Freeh said the rationale when such laws were enacted in the late 1970s was to put drug kingpins out of business. But more than two decades later, it's clear that hasn't worked, he said.

"Drugs are cheaper, purer and more available than ever before, and America's prison population has tripled to more than 2.1 million," Freeh wrote.

In Delaware, the prison and jail population has more than quadrupled in the last 25 years, Freeh wrote. The cost to support the rising prison population has soared to more than $200 million a year.

"Still, drug use has not declined and our communities are not safer," Freeh wrote.

Wolf said about 19 states have repealed or restructured mandatory minimums for drug crimes. Michigan, whose laws were considered among the toughest in the country, repealed its statutes in 2003.

Three people on each side of the issue -- those opposed to current mandatory minimums and those in favor of them -- are expected to testify before the House today, according to House spokesman Joseph Fulgham.

Freeh is traveling and will not be available to speak. But Carpenter, who plans to speak, said passage of H.B. 71 would make Delaware a leader in the removal of "cookie-cutter justice."

"It will really improve the administration of criminal justice in Delaware," Carpenter said.

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