Politics & Policy

Sutton’s Place

The case of two Border Patrol agents.

A Senate subcommittee is examining the controversial prosecution of the two Border Patrol agents who are serving 11- and 12-year sentences for shooting a fleeing drug smuggler two years ago today. This spare explanation of the case — a case that has commanded the attention of senior aides at the White House — is enough to warrant a condemnation of the Bush administration by many critics. “I strongly believe that the sentences in this case are too extreme. . . These men were given sentences that some individuals who are convicted of murder wouldn’t receive,” says Senator Dianne Feinstein (D., Calif.), who is presiding over today’s hearing. The problem for the White House is that you don’t have to believe that agents Ignacio Ramos and Jose Compean are wholly innocent to agree with Senator Feinstein.

In February 2005, Osbaldo Aldrete-Davila, a Mexican citizen, abandoned a van that was being pursued by border agents and ran away in an attempt to get back across the border. Both Compean and Ramos fired at Davila, who was struck by one of the bullets. The agents claimed self-defense, based on their alleged belief that Davila was armed. The van was later found to contain almost 800 pounds of marijuana. There was evidence that the agents tried to cover up the fact that they shot at Davila, and they failed to report the incident as required by agency regulations.

Davila was offered immunity in exchange for his testimony against the agents, and — in March 2006 — a jury found them guilty of assault with a dangerous weapon, discharge of a firearm during a violent crime, obstruction of justice, lying about the incident, and violating Davila’s civil rights. Ramos and Compean were sentenced to 11- and 12-year terms, respectively, and Davila has filed a lawsuit for the violation of his civil rights, seeking $5 million in damages. The agents began serving their sentences in January.

Questions have been raised about whether Davila was involved in another attempt to smuggle drugs after being granted immunity and about whether he met the terms of his immunity deal.

“I understand the public-relations problem the case has caused,” acknowledges U.S. Attorney Johnny Sutton, whose office prosecuted the agents, “We are trying to get the public to see our side of the story.” A very frustrated Sutton explains that his office has prosecuted scores of drug smugglers, but in this case immunized one in order to prosecute two bad border agents. “You have to understand that we could not turn our backs on this,” he argues. “Two Border Patrol officers shot 15 times at an unarmed man who was running away and posed no real threat.” The jury did reject the agents’ claim of self-defense. It might well be that the agents behaved unlawfully, but the Bush administration’s “public-relations problem” is owing to the harsh sentences that are the result of prosecutorial decisions.

As Andy McCarthy, who was sympathetic to Sutton’s argument, has noted, anger about the case is not limited to single-minded border-security activists: “The severity, the equities, and the potential ramifications” have made many others uneasy.

Many critics, uncomfortable with second-guessing law-enforcement officers who must make split-second decisions, would be untroubled with firing the agents (two supervisors who failed to follow agency procedures following the incident were fired) or with shorter jail terms if egregious behavior was proven at trial. But Ramos and Compean will spend more than a decade in jail because they were charged with violating a federal gun law that mandates such a harsh term.

The original indictment against the agents did not even include the federal gun charge; it was added to the indictment after the agents refused plea bargains under which they would have served about two years in jail. Prosecutors then charged the agents with discharging a firearm during the commission of a violent crime and argued that the charge carried a mandatory-minimum ten-year jail sentence. Without the gun charge, the agents’ sentences for assault and the violation of Davila’s civil rights would have been far shorter.

But the Washington Legal Foundation — in an amicus brief filed on behalf of the agents — argues that the prosecutors misapplied the mandatory-minimum provision, originally part of the Gun Control Act of 1968, because it was intended to deter criminals from carrying or using a gun in the commission of a violent crime or drug offense. They argue that it was not intended to be applicable to law-enforcement officers who “use and carry” weapons in the performance of their duties. As the legislation’s chief sponsor explained, the law was meant to “persuade the man who is tempted to commit a federal felony to leave his gun at home.” Although the use of the gun statute in cases involving shootings by law-enforcement officers is not unprecedented, the brief argues that it has typically been reserved for “extremely rare cases” of criminal behavior by rogue officers.

Does the Bush administration support a broad use of the mandatory-minimum gun charge against law-enforcement officers who would routinely face ten-year sentences when a jury second-guesses their use of deadly force? Lawless law-enforcement officers shouldn’t be treated better than other criminals, but they shouldn’t be treated any worse simply because their job requires that they be armed.

The Bush administration’s aggressive defense of the prosecution of the agents over the past months has not diminished the outrage on conservative talk radio, on the Internet, and in Congress. Defending the routine application of the 1968 gun-control law to law-enforcement officers is unlikely to win converts to Johnny Sutton’s prosecutorial decisions.

Recent developments have put the White House in a tough spot. The debate over “comprehensive” immigration reform added newly engaged recruits to the ranks of those angry about the administration’s perceived laxity on border enforcement; and the commutation of Scooter Libby’s “excessive sentence” has fueled calls for commutations of the agents’ lengthy sentences.

In a familiar pattern, the White House has been attributing the angry reaction on behalf of Ramos and Compean to ill-informed critics unfamiliar with the facts in the case. Unfortunately for them, understanding the facts is what makes defending the Bush administration’s harsh treatment of two border defenders so difficult.

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