Should Interstate 80 be treated like JFK airport in New York?

Read Scott Greenfield’s post entitled The Pendulum and the Mule. It discusses the extremely low sentences drug mules are getting when they get caught at JFK airport over which the Eastern District of New York has jurisdiction. One Eastern District Judge said “This is virtually, you know, a slap on the wrist.” Scott seems to think this might be a good thing.

The judges’ rationale seems to be that the federal courts in the Eastern District of New York don’t want to be clogged with “silly” low level drug cases. What?

Aside from the fact that it is not their job to decide who to prosecute, one can hardly describe Eastern District federal judges as overworked when it comes to their criminal dockets. For example, the Eastern District of New York ranks last in the nation for criminal cases 75th out of 94 federal courts for federal felonies. See here.

We get tons and tons of mules on I-80 and they find their way into our modest little federal court. Maybe I should consider that long stretch of concrete as a giant JFK. I don’t want silly low level mule cases. I know better than DOJ who should be prosecuted. I don’t care about unwarranted sentencing disparity caused by judges doing their own thing.  After all, I live in “fly over” country and everybody knows that I know best out here where not too many years ago we frequently saw real mules. That’s the ticket!


PS Scott also writes:

Though, before they get too down on the mules for their sweet deals, it would behoove the judges to remember that these aren’t people living in palaces built on foundations of cocaine in lush island resorts. Their lives were awful enough before they were enticed to take a terrible chance to put food on their family’s tables.

Their lives are punishment, and it serves no constructive interest to deprive their children of food so that they can be warehoused by the government to send a message. People with hungry children already have a message, and it’s more important to them than any message a judge thinks he’s sending, regardless of the sentencing paradigm.

There is no question that some mules deserve gentle treatment because they are caught up in a world over which they have little control. That is a world of real horror. I am not so sure that this is true for most mules, however.





14 responses

  1. It’s fair to distinguish between I-80 mules and airport mules. The risks involved in air passenger smuggling–and the degrading and dangerous, deadly ways in which it’s done–suggest to me that airport mules often will be victims as much as perpetrators. That’s less likely to be true of a couple of meatheads from California with a rented SUV.

  2. If you have a better class of mule on I-80 (as anon above suggests), then they should be treated in a manner befitting their specific situation. And that’s the point, that one size (Guidelines) does not fit all, and never did. That’s why they pay judges the big bucks.

    Then again, remember the olden days when pedestrian crime like drugs was a state court problem, never to sully the grand federal courthouses? This left Article III judges with sufficient time to leisurely ponder the important constitutional issues that confronted the Republic. Now, federal judges have to worry about highway and airport mules, and the lack of time and attention to loftier issues suffers. And for that, we all suffer.


  3. SHG and Anon.,

    We do have mules who get paid a couple hundred bucks to transport meth from the border to Grand Island so they can catch a job working in the packing plants. If you have never seen the inner workings of a packing plant, don’t make any effort to do so. The men and women who work on the line are exposed to incredibly hard work and the danger of heavy sides of beef slidding past their long knives hour after hour. For those mules, sometimes I feel like I should award them the Medal of Freedom rather than give them a prison sentence.

    All the best.


  4. A interstate drug mule can be prosecuted by either federal or state court. I guess that is decided by the respective prosecutors by a process that is not very transparent. I did ask about that and was told that if the federal prosecutor wants the case they get it. If true that changes the question to why would they want the case?

  5. It’s hardly the place of a judge to act on this truth, but the problem is that drugs are treated as a criminal matter in the first place. There was no such legislation before 1914, and the US survived somehow. So long as the state is in the business of making and enforcing dietary laws, there will be lots of needless problems of this kind. Yes, it would be lovely if you could banish the problems caused by people’s stupid choices in this area by passing laws and jugging people, but it doesn’t work that way.

  6. Judge:
    The decision concerning the prosecution or punishment drug “mules” is a consequence, not a cause. A truly free society would, among other things, allow individuals to use drugs (short of making illegal the sale of drugs to minors). Drug laws have the unintended consequence of creating the “pusher” and the “mule”, roles that would immediately disappear upon legalization. Despite my being politically to the Right of Attila the Hun, I can’t help but conclude that the so-called “War on Drugs” has failed except to falsely justify more government in the form of police, prosecutors, judges, prisons, etc. As a result, are we necessarily better off with stringent drug laws? If not, then why is such a system still in place after decades and trillions of dollars spent to create solutions to a non-existent problem? Cui bono? Who profits?

  7. Robert,

    I don’t know the answer to your question. You may be right. But my job, at least as I see it, is to enforce the laws that the political branches of government have agreed upon. I feel that way because I believe in a democracy. That said, the polorization we see now badly shakes my faith.

    Thanks for your engagement. All the best.


  8. You should know better than to give a man an inch when he has regrettably howled at shadows in the past.

    I simply find judges distasteful, even more so when they get together for retirement gatherings or memorials and rightfully partying together. (I don’t think it’s the “big bucks” as much as it is the tempting “pension”. I will save that thought however.

    Suck it up and deal. You are just a judge. You wanted to be one too.

    I think you would be lying if that decision hasn’t become more perplexing as the years erode and sharpen you simultaneously.

    Beef in Nebraska is much more sensible on most of the senses than working on a poultry line in the Dakotas.

    But “suspect” travelers, that seems to be a whole new story throughout the land and it seems as though you get and gots…a lot.

    Only in America do the peace keepers “seize” property without formal charge to make payroll.

    Oh well…

    Even if you are only allowed to judge “interstate”, you got to love commerce. Think about it.

    The railroads aren’t quite all bought up again yet. Even when, flag stops in every county along the way are doubtful.

    Monopoly is the pendulum only the court gets to shine and the right of way is not up for discussion.

    The tried and true criminals take notice? Really! Perhaps, I don’t even want to know if they are running drugs or steel.

    Either way the country is nothing but fucked if it gives up its livestock and grain even if the “shipping” costs are outrageous.

    Everything is local.

    International Airports are. They share, and to their credit with everyone.

    So do “bypassed” state highway cafés in counties bifurcated by interstates. Them on and off ramps and underpasses do bind the counties that have to share these days with three or more other counties to educate their children, ship goods to market, and transport their trespassing and needlessly reckless or violent citizens to jail.

    I don’t know, perhaps
    bringing it to “who” is the question? Or is this a question of, in who’s back yard is the “who”? And all that….for lack of a better word, reconciliation fits but does it when peace keepers get paid.

    I find it nearly incomprehensible that there is as much “agreement” and “guidance” as their is amongst you robed ones throughout the country.

    Ultimately every “who” is blessed enough to eat. Eats are at the table they are invited to. Incarcerated or not.

    I don’t think either you or the esteemed NYC criminal defense lawyer get out enough. Although I am sure you both see plenty more than the eighth of a mile on either side of the route to the airport, that journey nor your professional expertise is overly comforting.

    I would assume, day in and day out, you both see very parallel literal pages of the same story’s unfold, while hypothesizing the ending to each other’s sentences “worlds” apart. For good reason.

    And then we have those prosecutors sprinkled throughout the land doing their utmost to hypothesize as well when not preoccupied.

    Anyway, it is just a mile but the last thing I would want to stumble upon is when the “knowing” became punishment in and of itself at the crossroads of assumptions getting lazy.

    Everyone shills in America and the prop players get paid in chips.

    Used to be you and I would invite a stranded traveler waiting for a radiator hose or tire over to dinner if we were the one to meet him on the side of the road.

    I am not so sure that this is true anymore.

    Keep on judging. There are still way more benefits of the doubt than bad guys. You will be clear to see one day.

    Keep it sane.

  9. J. Conrode,

    Thanks very much. I hadn’t thought very much about the “willfully blind” mechanic who does this sort of work. Fascinating article.

    All the best.


  10. I cannot help but be amazed at your comment “for those mules, sometimes I feel like I should award them the Medal of Freedom rather than give them a prison sentence,” given your Sentencing Philosophy of “I like the coherence and predictability of the Guidelines.” (accessed from your federal judiciary profile from the District Court of Nebraska website).

    At first I might think that your subjective sentiments towards some types of drug offenders would promote defense attorneys to ask for more lenient sentences. But, then I read more of your Sentencing Philosophy and see “If you want to influence me, give me a particularized (preferably written) explanation about why the specific sentence you propose is demonstrably better than some other sentence. Otherwise, shut up.” I’m sure defense attorneys are eager to ask for leniency from a judge that states he prefers the predictability of the Guidelines and that if you do not have a good reason for a downward departure, just “shut up.” Although I guess this is better than telling defense attorney’s to STFU (with a link to Urbandictionary for those that do not understand your edgy terminology).

    So far (as I am aware), you have told Congress to “go to h***,” defense attorneys to “shut up,” the Supreme Court of the United States to “STFU,” and discussed what it’s like being a “dirty old man” on the bench gawking at female attorneys. What is odd is that these actions seem completely contrary to what you wrote in your Recusal Order (NO. 2011-10); specifically “I recognize that corrosive words, even when legitimate, can impede civil discourse. That is a bad thing. More important, when acidic words are uttered by a federal judge, those words may in turn lessen the public’s perception of the federal judiciary as whole. That would be even worse.”

    That is amazing! As a federal judge you have openly stated that you are completely aware that your use of corrosive language and acidic words are detrimental to the federal judiciary. Yet, you continue to use such language and claim that it is for the greater good of transparency. Even assuming transparency is a legitimate purpose, you clearly state that such words impede civil discourse “even when legitimate.” Furthermore, the Code of Conduct for United States Judges (which you mentioned in your 7.11.2014 post…but left out the paragraph prior to where you started quoting) Canon 1 states “An independent and honorable judiciary is indispensable to justice in our society. A judge should maintain and enforce high standards of conduct and should personally observe those standards, so that the integrity and independence of the judiciary may be preserved.

    The Commentary for Cannon 1 then states “Deference to the judgments and rulings of courts depends on public confidence in the integrity and independence of judges. The integrity and independence of judges depend in turn on their acting without fear or favor. Although judges should be independent, they must comply with the law and should comply with this Code. Adherence to this responsibility helps to maintain public confidence in the impartiality of the judiciary. Conversely, violation of this Code diminishes public confidence in the judiciary and injures our system of government under law.” The Commentary states that judges should not engage in activity that violates the Codes of Conduct as it diminishes public confidence in the judiciary. You clearly acknowledge that corrosive and acidic words uttered by a judge, even when legitimate, may lessen the public’s perception of the judiciary. Yet, you continue to use the exact type of language that you know diminishes public perception, which is exactly what the Code of Conduct is concerned with preventing.

    On a closing note, I would be torn were I ever put in a position where I was required to appear in your courtroom. The sensible side of me would simply want to refuse to take any case in which you were the presiding judge, citing what I believe to be your lack of professionalism and and respect for the judiciary and our system of government. However, there is another side of me that would be eager to appear in your courtroom and enjoy what must be a frat-like environment. Should you rule unfavorably regarding a motion, I could simply call out that you are a Republican appointed white male and that you should just STFU. Afterwards I could approach the bench and make some vulgar jokes about how hot the female prosecutor is looking in her blouse and we could have a good laugh, just like a couple of dirty old men. Lastly, we could fist-bump and get back to business.

  11. Edit: My reply was meant to be a response to RGK’s post from 7.14.2014 at 9:39 am. Furthermore, the following paragraph was meant to be included in my original post. In its original form, it preceded the final paragraph.

    Should you truly believe that the U.S. Supreme Court is a group of nine individuals who cast votes according to partisanship/ideology then advising readers to research the attitudinal model of judicial decision making may be a more appropriate approach to civil discourse than telling the justices to “STFU.” “The Supreme Court and the Attitudinal Model Revisited” by Jeffrey Segal and Harold Spaeth would be an excellent starting point to promote a public dialogue on the subject. From this point readers could continue to explore the attitudinal model, or they could examine other approaches to judicial decision making, including: legalist, sociological jurisprudence, realism, historical institutionalism, and rational choice – more recently “The Behavior of Federal Judges: A Theoretical and Empirical Study of Rational Choice” by Lee Epstein, William Landes, and Judge Richard Posner – just to name a few. For a more philosophical approach to law, you could encourage readers to read any of the works on law by Ronald Dworkin, one of the greatest legal commentators of our time. There is some irony in that you reference Dworkin’s “Hercules” (the decider of hard cases) in your blog title, and then diminish the Supreme Court to a group of partisans. Instead of promoting an educated public discourse on judicial decision making, your commentary on the Hobby Lobby decision appears to be an attempt at political punditry more suitable to the 24 hours news networks.

  12. I found the jurisdiction issue more troubling than just the fact of prosecution, although I realize jurisdiction flowed from the conspiracy claim. To me a key takeaway/talking point is whether the issue of Anaya’s culpability is better answered in his home jurisdiction.

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