The Belleville News-Democrat recently interviewed Prof. Frank Bowman regarding the federal prison sentence for Sean D. McGilvery, the man accused of being former St. Clair County Circuit Judge Michael Cook’s heroin dealer. McGilvery was sentenced to 10 years in federal prison because the quantity of heroin attributed to him triggered a mandatory minimum sentence. Had there been no mandatory minimum, McGilvery’s sentence would probably have been closer to five years.
Prof. Bowman explained that in federal cases the facts that trigger a mandatory minimum sentence must be proven to a jury or admitted by a defendant. “If the prosecutor, the defense attorney and the probation officer who prepares the pre-sentence investigation for the judge, agree on the ‘relevant conduct’ or the amount of drugs sold by the defendant, then the defendant can admit that and the judge can sentence based on that.” However, Prof. Bowman said, if the defendant contests the amount of drugs, “A jury must determine whether the evidence exists to trigger the mandatory minimum sentence.”