Judge urges lawmakers to revisit ‘ice’ law that requires mandatory sentence

Superior Court associate judge David A. Wiseman urged the Legislature yesterday to look into a law that provides a mandatory 25-year prison sentence on anyone convicted of trafficking “ice” even it only involves 3 grams and the defendant has no prior conviction.

This came as Wiseman postponed the sentencing of Jing Xin Xiao, who was convicted of trafficking of a controlled substance and illegal possession of controlled substance involving 3 grams of “ice.”

In a written order yesterday, the judge said he finds it necessary to make a statement suggesting amendments to mandatory sentencing laws as this type of statutes “curb the discretion of prosecutors and judges over certain offenses or types of offenders.”

He said divesting prosecutors and judges of control over criminal sentences is a concern because discretion is the touchstone of a judicial sentence.

“A sentence should reflect a deliberate sentencing plan and be tailored to the particular offense and offender, such as the criminal history of the defendant, was he serving on probation at time of offense, was there harm to any victim, was the offense committed at a school or other public institution, were weapons used during the crime, etc. etc.,” he said.

In a mandated sentence such as in the case of Xiao, these and other factors have no bearing on the sentence.

Wiseman noted that Xiao has no record of criminal conviction and the amount of drugs he was convicted of was 3 grams. Under the mandatory sentencing law, a judge cannot factor these things into the sentence, he said.

Xiao, Wiseman said, will be penalized and treated similar to a suspect who may be convicted of trafficking 5 to 100 kilos of “ice” and who have also have several prior convictions, and who may have sold “ice” to schoolchildren.

Wiseman said Xiao, convicted of selling 3 grams of “ice” with none of these aggravating factors, will still receive a mandatory sentence of 25 years.

“As a result, there is a gross disproportionately which the court urges the Legislature to look into,” he said.

The judge noted that Public Law 11-24 amended the previous law with respect to importing methamphetamine or “ice” into the Commonwealth providing that if its more than 5 grams the mandatory sentence of 25 years with no parole or suspension applies, while the trafficking of “ice” does not have any weight requirement.

“This is troubling because for the most part, there would not be any trafficking, or little of it, if there was no import of it,” Wiseman said.

He said the CNMI Supreme Court has ruled that there are actually three choices of sentencing a court can have when sentencing under the applicable mandatory code provision.

In Xiao’s case, Wiseman said he will review the representations by assistant attorney general Russell Lorfing and chief public defender Adam Hardwicke and continue the sentencing for Aug. 10, 2011 at 9am.

The Department of Public Safety claimed last year that 236.5 grams of “ice” with a street value of $118,250 were recovered during a raid on April 7, 2010, at the house of Xiao on Saipan, making it the largest drug bust that DPS conducted without the help of the Drug Enforcement Administration.

But tests conducted by Guam Police Department criminalist Analyn Gatus showed that only 3.5 grams tested positive for “ice”; a big chunk of evidence submitted for testing was actually Chinese sugar.