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United States of America v. Emily Leitch

February 28, 2013


The opinion of the court was delivered by: John Gleeson, United States District Judge:




A. Introduction

Everywhere you look federal policy makers are complaining about the rising costs of incarceration.*fn1 Last year, in a letter to the United States Sentencing Commission ("Commission"), the Department of Justice ("DOJ") called for a review of federal sentencing policy -- "both systemically and on a crime-by-crime basis" -- in an effort to rein in prison costs.*fn2

In Fiscal Year 2012 DOJ's budget for "incarceration and detention grew by several hundred million dollars," and was "on a funding trajectory that will result in more federal money spent on imprisonment and less on police, investigators, prosecutors, re-entry, and crime prevention."*fn3

Despite a sustained increase in federal prison spending, the continued growth in the prison population has resulted in overcrowding. Our federal prisons are 38% over capacity, and DOJ reports that "[t]his level of crowding puts correctional officers and inmates alike at greater risk of harm and makes recidivism reduction far more difficult."*fn4 The Bureau of Prisons projects that the federal prison population will continue to grow through 2020,*fn5 a forecast DOJ has described as "troubling."*fn6

A week after DOJ's letter, the Senate Committee on the Judiciary held a hearing on rising prison costs in the federal and state systems. Chairman Patrick Leahy, in a statement to the Committee, lamented the dramatic increase in federal prison spending over the past five years and called for sentencing reform that would make our "criminal justice system . . . more efficient and effective."*fn7 In a letter to the Committee, the Sentencing Commission promptly commended it "for holding a hearing on the costs of incarceration in this country."*fn8 The letter proposed some modest reforms, including that Congress (a) request prison impact analyses from the Commission before enacting criminal penalties; (b) consider a "marginal[ ]" enlargement of the so-called "safety valve" provision, which spares some drug trafficking defendants from harsh mandatory minimum sentences; and (c) reassess DOJ's ability to double those mandatory minimums.*fn9

Our federal prison system costs have ballooned because the federal prison population has exploded during the determinate sentencing regime ushered in by the Sentencing Reform Act of 1984 ("SRA").*fn10 That explosion can be attributed, in substantial part, to the increased severity of federal drug trafficking sentences.*fn11 In less than a decade, from 1985 to 1991, the length of federal drug trafficking sentences increased by over two-and-a-half times.*fn12

This increase in sentence length for drug trafficking offenders "was the single greatest contributor to growth in the federal prison population between 1998 and 2010."*fn13

Another significant contributor is the dramatic decrease in sentences of probation since the passage of the SRA. The Sentencing Commission was supposed to ensure "the general appropriateness" of probationary sentences for first-time offenders unless they commit "crime[s] of violence or . . . otherwise serious offense[s]."*fn14 Instead, it unilaterally declared in 1987 that every theft, tax evasion, antitrust, insider trading, fraud, and embezzlement case is "otherwise serious," and thus no more eligible for a sentence of probation, even when committed by a first-time offender, than would a crime of violence.*fn15 As Professor Kate Stith and Judge Jose A. Cabranes observed fifteen years ago, "While before the Guidelines nearly 50 percent of federal defendants were sentenced to probation alone, that figure is now less than 15 percent."*fn16 Last week the Commission reported that that figure is now less than six percent.*fn17

Apart from the fiscal cost of mass incarceration, but at least as important, is the human cost. Lives are ruined, families are destroyed, and communities are weakened. President Barack Obama recently alluded to these costs: "There's a big chunk of that prison population, a great chunk of our criminal-justice system, that is involved in nonviolent crimes. I think we have to figure out what are we doing right to make sure that th[e] downward trend in violence continues, but also, there are millions of lives being destroyed or distorted because we haven't fully thought through our process."*fn18

We can do a lot, right now, to significantly reduce the unnecessary and excessively punitive costs of over-incarceration. Three reforms in particular have the potential for cost savings -- both fiscal and human -- that would dwarf those of all of the Commission's suggestions combined.

First, many low-level drug trafficking defendants are receiving the harsh mandatory minimum sentences that Congress explicitly created only for the leaders and managers of drug operations.*fn19 As I suggested in United States v. Dossie, DOJ can fix this problem by invoking those mandatory sentences only in the roughly 6% of cases where it proves that the defendant was a leader or manager in a drug trafficking offense.*fn20
Second, low-level drug trafficking defendants who manage to escape mandatory sentences are subjected to excessively severe Guidelines ranges linked directly to those harsh mandatory sentences.*fn21 As I suggested in United States v. Diaz, the Commission can fix this problem by de-linking the Guidelines ranges from the mandatory minimum sentences and crafting lower ranges based on empirical data, expertise, and more than 25 years of application experience demonstrating that the current ranges are not the "heartlands" the Commission hoped they would become.*fn22

These reforms would shorten expensive prison terms that are too long. But there is a substantial segment of our prison population that need not have been sent to prison at all, and that's where a third reform comes in: alternative to incarceration programs.*fn23 These reforms are simple and hardly innovative; they merely adapt to the federal system approaches that many states have used to great effect and with broad bipartisan support.

In this district, we have two such programs. One is the Pretrial Opportunity Program ("POP"), a presentence drug court, of which Emily Leitch and Ian McDaniel are the first graduates. The other is the Special Options Services ("SOS") Program, which provides for intensive presentence supervision of youthful offenders, of which Ernesto Nunez is the most recent graduate.

If these three cases were handled in traditional fashion, with reference only to the Commission's Sentencing Guidelines, Leitch would have been sentenced to at least 37 months, McDaniel to at least 18 months, and Nunez to at least 30 months in prison. These prison terms alone would have cost a total of approximately $205,000.*fn24 The costs would hardly have ended there, for each defendant would have emerged from prison jobless and facing all the collateral consequences of a felony conviction. Leitch and McDaniel would have encountered difficulty providing for their children.

Instead, Leitch and McDaniel's sentences were adjourned to allow them to participate in the POP drug court, and Nunez's sentence was adjourned to allow him to participate in the SOS Program. As discussed more fully below, each has made remarkable progress.

And instead of sending Nunez off to prison, I sentenced him on January 25, 2013 to a term of probation, a sentence both Nunez's attorney and the prosecutor agreed was appropriate. I also sentenced McDaniel to a term on probation on February 13, 2013. The government not only agreed with that disposition, it was so impressed with McDaniel's turnaround in POP that it had previously agreed to dismiss the felony drug trafficking charge he faced and to replace it with a misdemeanor. Thus, McDaniel has avoided both prison and a felony conviction.

Leitch will not be sentenced at all. On February 14, 2013, the day I had set for sentencing, the government announced it had reached a deferred prosecution agreement with Leitch. As long as Leitch continues to comply with her conditions of release for the next 18 months, the government will dismiss the felony drug trafficking charges against her, one of which she had pled guilty to on February 3, 2012. I approved the agreement and the withdrawal of Leitch's guilty plea on the joint application of the parties. Thus, for Leitch, POP will be a true diversion program; she will avoid both prison and a criminal conviction.

These results are possible only because the United States Attorney in this district, Loretta Lynch, fully supports both the POP drug court and the SOS Program. She is not alone in her commitment to these alternative to incarceration programs. Other United States Attorneys, in California, Connecticut, Illinois, South Carolina, and Washington, have endorsed similar programs, and indeed they have worked side by side with courts and Federal Defenders to create them.*fn25 Leitch may be the first graduate of a federal presentence program to have felony charges dismissed entirely, but she will soon be joined by others. More importantly, whether or not charges are dismissed, presentence programs like ours and those in other districts mean that a growing number of courts are no longer reflexively sentencing federal defendants who do not belong in prison to the costly prison terms recommended by the Sentencing Guidelines.

B. The Defendants in These Cases

1. Emily Leitch

Emily Leitch is 29 years old. She has lived in Brooklyn her entire life. Her parents separated when she was four years old due to her father's addiction to alcohol, marijuana, and crack cocaine. After the separation, her father returned to his native Guyana. He did not visit Leitch or financially provide for her. Leitch was raised in poor economic circumstances by her mother, who cared as best as she could for her, but suffered from alcoholism and died in 2002 from cirrhosis.

From approximately age 12 to 16, Leitch was sexually abused by her godfather, who babysat for her while her mother worked. Leitch has one sibling, a sister, who was convicted of importing cocaine in April 2012.

In the Western District of Washington, Judge Ricardo Martinez, who established a drug court as a Superior Court judge in King County, has begun an analogous federal drug court. The drug court collaborates with the U.S. Attorney's Office and Federal Defender's Office, and it contemplates the vacatur of participants' convictions upon successful completion. See Gene Johnson, Seattle Gets Specialized Federal Drug Court, THE SEATTLE TIMES, Dec. 13, 2012, available at

In an Alternatives to Incarceration program hosted by the New York University School of Law and the Federal Bar Council last spring, Deputy Attorney General James M. Cole specifically mentioned the CASA, Bridge and PADI programs as among those fully supported by DOJ. James M. Cole, Deputy Attorney General, U.S. Dep't of Justice, Speech at New York University School of Law on Alternatives to Incarceration: The Use of "Drug Courts" in the Federal and State Systems (May 21, 2012), available at

Leitch has been in a relationship with Corey Poole since 2001; they are engaged to be married. She and Poole have three children together: Camanya, age 10; Koreyna, age 7; and Nazir, age 3.

Leitch has an extensive history of substance abuse. She began smoking marijuana daily at age 11. Following her mother's death in 2002, she became addicted to cocaine as well. She snorted it daily, spending approximately $200 per week on the drug. She stole from Poole to support her habit. In 2007 Leitch underwent outpatient treatment for her addictions at Poole's request, but failed to comply with her treatment program. In 2008 she again underwent outpatient treatment, but once again failed to maintain sobriety.

In 2009 Leitch went to Guyana in an attempt to reconcile with her father, who continues to abuse crack. While she was there, her father got high and assaulted her. Nevertheless, in the summer of 2011, Leitch traveled to Guyana to visit her father again, this time with her three children. They were supposed to return to the United States on July 8, 2011, but Nazir fell ill. Leitch changed the date of their return flight, but she could not afford to pay the fees associated with changing the flight. A man who learned of her situation offered to pay those fees and an additional $30,000 if Leitch agreed to transport drugs back to the United States. Leitch agreed.

On July 27, 2011 Leitch arrived at John F. Kennedy ("JFK") International Airport in Queens, New York, aboard a Caribbean Airways flight from Guyana. She was selected for examination by Customs and Border Protection ("CBP") officers. Leitch presented five pieces of luggage. The officers discovered cocaine embedded in the sides of the luggage and in rum bottles and food cans inside the luggage. The net weight of the seized cocaine was 13.2 kilograms.

Leitch was arrested and charged with importing cocaine. She was released that day on conditions that included returning to court two days later with sureties to sign her bond. She returned to court on July 29, 2011 under the influence of drugs. Chief Magistrate Judge Steven M. Gold ...

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