"Mandatory minimum" laws can mean grossly disparate sentences for gun crimes

It was the second-biggest mistake of LaRue Y. Smith's life.

Laid off from his job, Smith went to his computer, copied out a list of 7-Eleven stores in and around Philadelphia, grabbed a gun, and started sticking them up.

The clerks and customers were terrified. Smith fired his revolver once, by accident, and almost shot himself in the leg.

Police caught the former Marine eight weeks after his crimes had started in June 2007. Within hours, he confessed to a dozen robberies that netted him an unimpressive $2,510, plus cigarettes, chips, and soft drinks.

Then Smith made his really, really big mistake.

In 2009, he rejected a plea bargain to serve 25 years and went to trial. A federal jury convicted him of 10 robberies.

Because Smith had been charged under a "mandatory minimum" law, the judge could not weigh the trial testimony or consider that Smith had no previous convictions. Automatic penalties written by Congress kicked in.

So Smith was sentenced to two centuries, three decades, and two years.

The 232-year sentence was 10 times the average 2009 federal sentence for murder.

Critics call such extreme disparities a "trial tax," and say it amounts to a penalty for exercising the right to trial by jury.

"He needs to be punished," defense attorney Christopher D. Warren said in court, "but based on my experience, he hasn't done anything which requires him to die in a federal prison."

If Smith gets time off for good behavior, his 232-year sentence will be reduced to 197 years.

If he lives until 80, incarcerating Smith will cost taxpayers at least $1.1 million. There is no parole in the federal system.

The case of the former nightclub bouncer, 41, now in a maximum-security prison in Colorado, is one of an increasingly controversial group of federal cases involving laws that impose mandatory prison terms required by Congress. Federal prosecutors in Philadelphia make aggressive use of the laws.

Legal scholars and critics say mandatory penalties mean that those prosecutors - not judges - end up determining how much prison time a defendant receives by deciding what charges are filed and what deal is offered before a trial.

Smith was arrested by local police and initially charged in state courts, where a conviction would likely have meant a 10- or 20-year sentence.

Then the U.S. Attorney's Office picked up his case, charging him under a federal statute that makes it a crime to brandish or use a gun while committing another "crime of violence." That includes armed robberies in which no one is shot or injured. Legal insiders refer to the law as "924c," its section in the federal criminal code.

Once convicted, Smith was sentenced to seven years on the first count and consecutive 25-year terms for each of the remaining nine.

Mandatory-minimum laws are popular; advocates say they allow tough punishment for serious crimes. They are also a powerful tool for federal law enforcement. The threat of long sentences persuades many defendants to plead guilty, negotiate a lesser sentence, and testify about other crimes.

Federal prosecution of what are typically state crimes stepped up more than a decade ago in reaction to drug and violent crimes that seem to overwhelm local courts.

"I do not think of it as a trial penalty," said U.S. Attorney Zane D. Memeger, who runs the team of 120 federal prosecutors in the Eastern District of Pennsylvania. Defendants are given a choice, he said, to plead and cooperate, or risk trial and a stiff sentence.

"You have to make a decision. It's not my fault if you make a bad decision," Memeger said. Critics "are not living in these communities where gunfire is rampant," he said.

Because the 924c gun law applies only to charges filed in federal court, Smith was also charged under the Hobbs Act, which makes it a federal offense to interfere with interstate commerce. The 7-Eleven corporate headquarters is in Dallas.

Congress increased the severity of mandatory minimum sentences in the 1980s and 1990s.

One of the few studies to analyze the effect of mandatory-minimum laws was released in October by the U.S. Sentencing Commission.

Its 2010 data showed Philadelphia leading the nation in convictions under the 924c law. There were pleas or guilty verdicts against 134 defendants. Twenty were convicted of multiple counts, meaning they faced the tough 25-year add-on sentences. Defendants who pleaded guilty in exchange for having all 924c charges dropped were not counted.

The power of prosecutorial discretion was demonstrated in two other area armed-robbery cases.

In August, three codefendants in a string of eight robberies pleaded guilty and received sentences ranging from three to 18 years. A fourth man, Devon Brinkley, 24, of Philadelphia, went to trial, was convicted, and was sentenced to 107 years.

Defense attorney Vernon Z. Chestnut called the sentence "so disproportionate to the actual crimes that it is shocking to the conscience."

In another area case, two men were indicted by federal prosecutors in 14 armed robberies in Philadelphia at the same time as LaRue Smith was robbing 7-Elevens. Christopher Sanders, then 22, and Theodore Kelly, then 29, opened negotiations with federal prosecutors.

Details of their case are unavailable because much of their plea agreements and other documents are under seal, an increasingly common practice when plea bargains are involved. Prosecutors typically say they agree to such stipulations to protect cooperating witnesses.

What is public knowledge is that the two men received the benefit of cooperation. In Sanders' case, prosecutors dropped nine counts of the mandatory-minimum gun law, saving him from a 207-year mandatory sentence.

Instead, he got 20 years.

Kelly's sentence is not recorded in the public court record. Three counts under the gun law were dropped, and the federal Bureau of Prisons says he is due to be released in 2017.

Federal rules say that there should be similar penalties for similar crimes and that prison time should be no longer than necessary for fair punishment.

But that theory runs up against the messy reality of the nation's justice system. Nationwide, only about 3 percent of federal defendants go to trial, and lawyers acknowledge the justice system would grind to a halt if that figure increased significantly.

Memeger, who took office in 2010, would not talk about individual cases and was not in office when charges were filed in the Sanders, Smith, or Brinkley cases. The chief federal prosecutor in the first two cases was U.S. Rep. Patrick Meehan, elected to Congress in 2010. He has not made himself available for comment on the issue.

But Memeger has little sympathy for defendants who commit violent crimes and then reject a deal from the government.

"You have the ability to make an informed choice, and you blew it. Whose fault is that? Not the government's," he said.

"Certain people in the community here just forfeit their right to be in the community by the crimes they commit."

The Department of Justice has supported changes to eliminate "excess severity" in federal mandatory-minimum cases and "help address the unsustainable growth" in federal inmates. If Congress will act on the proposals is unknown.

The Sentencing Commission has recommended changes to limit the mandatory penalties for certain gun, drug, sex, and identity-theft offenses.

Lifetime incarceration for crimes committed by inmates in their 20s and 30s means that taxpayers will be paying for housing, meals, and medical care for inmates in their 50s, 60s, and 70s and older.

That group will include Brinkley, the stickup artist with the 107-year sentence he received after rejecting a deal to serve 30 years. His first trial ended in a mistrial, there was a hung jury in the second, and he was convicted in the third.

Brinkley was part of a group of nearly a dozen young men who hung around a rowhouse in West Philadelphia.

During the robberies, they took different roles, some driving, some acting as lookouts, others wielding weapons and leaping counters. Most had records, including Brinkley.

Brinkley had little contact with his father, a truck driver. He left school in the ninth grade.

The mother of three of Brinkley's four children, Rasheeda Chisholm, lives in an apartment above a corner store in North Philadelphia.

"The plea was 30 years, but he still felt like that was a long time," she said.

Chisholm is astonished at the shorter sentences handed out to Brinkley's defendants. One is already back on the street.

"They get a second chance at life. . . . They are getting a chance to smell the air again," she said.

Chisholm said Brinkley's crimes reflected his background: "He grew up around that lifestyle and didn't know anything else."

The reality of his prison sentence remains a shock, and neither Brinkley nor Chisholm is willing to admit he will likely end his life behind bars.

A housekeeper, Chisholm was recently unemployed, and is home caring for their children, ages 3, 6, and 8.

"You would have thought he was the one guy who did all the knocking down and jumping over by himself," she said.

Criminal defendants typically reject deals hoping to get a better deal from a jury.

LaRue Smith, the 7-Eleven robber, admitted the crimes but tried to convince the jury that federal prosecutors had no right to try him for what are ordinarily considered state crimes. Higher courts have long rejected that argument.

At a 2009 hearing, then-U.S. District Judge Bruce W. Kauffman said he was "stunned" by Smith's decision to admit his guilt and insist on a trial.

Christopher Warren, Smith's attorney, said Smith's attitude toward a plea, combined with a long sentence, was not uncommon.

"I have encountered this attitude a lot," Warren said. "They think that a 25-year (plea-bargain sentence), their life is effectively over," and go to trial, hoping lightning will strike.

"The reason for not taking it," Smith wrote in an e-mail from prison, "was the fact that I had not murdered or even attempted to murder anyone. . . . and the fact that I was a "FIRST-TIME-OFFENDER."

Smith received a general discharge from the Marine Corps in 1995, worked as a data-entry employee for an insurance company and started a family. He turned to crime after being laid off from an Old City club.

At his trial, Smith said he only robbed enough stores to pay his rent and provide for his fiancée and young son.

During cross-examination, Assistant U.S. Attorney Michelle Rotella asked Smith if he had the same concern for his victims.

"Did you ask your first victim, the one where you came around the counter and shoved the gun in his stomach . . . if he had kids or a family?"

No, Smith admitted.

"I made a bad mistake," Smith said at his sentencing. "But to say my mistakes have to claim my life, I really can't fathom it."