Challenging overly aggressive use of prosecutorial discretion, the Law School's Center on the Administration of Criminal Law filed two amicus curiae briefs this week, in the Supreme Court of the United States and in the United States District Court for the District of Utah.
"The Center is thrilled to file these briefs in cases that typify one of our core missions: to intervene where prosecutors' overly aggressive exercise of discretion in charging leads to errors of law," said Anthony Barkow, who is the Center's executive director and who was a federal prosecutor for 12 years.
The brief filed in the Supreme Court in the case of U.S. v. Abuelhawa supports a petition for the Court to review a lower court's ruling in which the petitioner was convicted under a federal statute for using his cell phone to purchase drugs for personal use, conduct the statute was not intended to reach.
The second brief, filed in U.S. v. Angelos, supports a petition to vacate, set aside, or correct the sentence of the petitioner, who had no prior convictions, and was sentenced to 55 years in prison for selling several hundred dollars worth of marijuana on two occasions while carrying a gun, and for possessing a gun in his home on another occasion.
In U.S. v. Abuelhawa, the petitioner was charged with seven counts of violating federal law for using a telephone to arrange at most two meetings to purchase drugs. Thus, instead of the maximum two years imprisonment he faced on two misdemeanor counts of simple possession, he was instead subject to seven felony convictions totaling 28 years in prison, and deportation.
In U.S. v. Angelos, the petitioner would have been subject to a mandatory minimum sentence of five years in prison. But after he refused a plea offer, prosecutors indicted him on five separate charges of possessing a firearm in connection with a drug offense, which requires a sentence of at least five years in prison for the first offense and at least 25 years for each subsequent offense. He was convicted on three of these counts, leading to his mandatory minimum of 55 years in prison.
Barkow, along with the Center's faculty director, NYU School of Law Professor Rachel Barkow, prepared the brief in U.S. v. Abuelhawa in partnership with the law firm of Davis Polk & Wardwell and the brief in U.S. v. Angelos in partnership with the law firm of Jenner & Block.