By Jake Rossen
By Jesse Marx
By Michelle LeBow
By Alleen Brown
By Maggie LaMaack
By CP Staff
By Jesse Marx
"The facts that came out at trial were that [Gould] had a history of sales and he was falling all over himself to sell to these agents," he continues. "I think that the punishment fits the crime." From Gould's perspective, there's only one scenario under which it could have been worse: If the AG's office had used a clause in the drug laws that allows it to add up any individual sales occurring within a 90-day period, Gould could have gotten 98 months.
Gould's attorney complains that prosecutors could have made their case on the first deal alone. Trying Gould on three separate charges drove his sentence up by two years, and the cost of his incarceration to taxpayers up some $60,000. That kind of punishment was meant to be meted out to habitual drug dealers, Swanson insists.
Minnesota's drug laws contemplate punishing three different kinds of dealers: low-level street sellers, the mid-level distributors who supply them, and the really big-time dealers best described as wholesalers. Police and prosecutors decide which category to charge defendants in; once they've been convicted, judges turn to a set of guidelines to determine their sentence.
Created to ensure that there was some uniformity in the way crimes were punished by Minnesota's different courts, the guidelines are a grid with the levels of severity of different crimes listed on one side and the number of "points" a defendant has for prior convictions on the other. Judges are allowed to adjust a sentence up or down to reflect extenuating circumstances in any given case, which they do about a third of the time.
Defense attorneys complain that the guidelines give police and prosecutors too much power to determine a defendant's crime and sentence. Before the guidelines were applied to drug offenses, police usually charged someone with either possession or possession with intent to sell. If someone was caught with an unusually large amount, the judge adjusted the sentence accordingly. Since sentences weren't necessarily pegged to the amount of drugs police found, there was little incentive to drive up the amount of drugs someone sold an undercover cop, or to set up multiple buys.
In Gould's case, the two extra "priors" he racked up at his trial pushed him all the way to the right hand side of the sentencing grid, landing him a sentence of nearly six years. That's the kind of hard time otherwise reserved for rapists, kidnappers, and robbers, all presumed to be dangerous offenders.
Which raises a question: If Larry Gould was as dangerous as those other criminals, why was he allowed to stay on the streets for nearly a year and a half after he ceased to be the target of the BCA's sting operation? Did they just get to the end of the sting and need another bust to justify their time and expense?
"If the police goal is to eradicate drug use and somehow protect the community, it seems difficult to understand the police tactic in this case--to let [Gould], who is dealing heroin, a very serious drug, remain on the street for much more than a year before his arrest," Swanson argued when he appealed the case to the state Supreme Court. "If he truly is as dangerous an offender as other offenders convicted at severity level VI, one wonders why police did not immediately arrest him.... The primary goal seems to be to increase the length of the sentence." And longer sentences, simply put, make police and prosecutors look better.
"All of these people have to report their convictions to various agencies. They get a lot of [drug enforcement] money from the federal government and they have to report what they do," says Swanson. "A lot of this game is trying to lock people up and if they can lock them up for longer, the numbers go even higher. There's lots of money riding on the number of convictions."
Trying to make a case look as substantive as possible is a natural inclination for any cop, notes Johnathan Caulkins, a professor of public policy at Carnegie Mellon University who has studied the effectiveness of the drug war for the RAND Corporation: "There are all kinds of instances in which prosecutors or law enforcement will try to find ways to make the highest penalty and the longest sentence. In some ways, that's what they're supposed to do. We don't expect them to see the big picture."
There are legitimate reasons for extending a drug sting, Swanson adds, such as making sure there's enough proof to take a case to trial. But that's not true in Gould's case. Police had rock-solid evidence with which to convict and imprison him after the first sale. And they already knew the identity of the bigger target he could get them, so they had no incentive to use extra charges to push him into becoming an informant. So why charge him with three separate felonies? When Gould went to trial in January 1995, his attorney had hoped he'd do time for just one charge, which would have meant 44 months.
Federal courts have recognized that undercover narcotics operations present police with multiple opportunities to drive up a convict's sentence, a practice known as sentencing entrapment or sentencing manipulation. Cops can keep making buys from a single defendant until he or she has reached a desired threshold of criminality, or they can ask for an unusually large quantity of drugs or a different drug altogether.