Federal prosecutors and law enforcement dominate the prosecution of drug crimes. Conspiracy to Distribute Controlled Substance Indictments are their magic weapon in the war on drugs. Why? Simple: Mandatory Minimum Sentences. These draconian punishment tools are their stock in trade. Criminal defense attorneys, especially experienced criminal defense attorneys, have been accomplices in this miscarriage of justice, forced to play along with a system that treats due process and equal protection like annoying trifles. Here’s how it works…
You charge everyone from Granny to the family dog as co conspirators, all working together to distribute drugs. Granny relayed that phone message to Junior, a notorious crack dealer? Busted. Lil’ Sis brought in that package she found hidden on the front porch? Goin’ down. Junior dealing large quantities of cocaine and methamphetamine over time? They all face mandatory minimum sentences of at least ten years. Those Federal Sentencing Guidelines be damned. Better hope a firearm wasn’t involved. Not only are they all looking at ten years in prison; they don’t even get to have a fair shot at trial since there is a presumption they be held in detention once they are arrested which they must “rebut” or they wind up behind bars from day one. And, best of all, the judges have no choice. Mandatory means what it says.
Thus begins the snitch fest of Safety Valves and Cooperation. You see under certain circumstances the only way out of those mandatory minimums is to tattle on your friends and families, snitching your way to freedom. Of course, it can be dangerous. The drug dealers’ favorite phrase is “Snitches get Stitches.”
Enter Attorney General Eric Holder, stage definitely left. Make no mistake. I don’t like Holder. He has been asleep at the wheel for half a decade as my clients have been run through this nightmare scenario again and again. But now, finally, it’s possible that Holder woke up and smelled the jail house disinfectant.
In a series of Memoranda, beginning this past summer, Holder is directing Federal Prosecutors to get their priorities in order, literally. Citing the national priorities for the Department of Justice [“(1) protecting Americans from national security threats; (2) protecting Americans from violent crime; (3) protecting Americans from financial fraud; and (4) protecting the most vulnerable members of our society.”] Holder tells prosecutors to think twice before bringing every criminal charge they can, just because they can. There (finally) has to be a good reason. Of course, until now, that good reason has been a desire to ratchet up the snitch game. Now, hopefully, that might change. A bit. Maybe.
In an August 12, 2013 Memo to his people, regarding federal prosecution priorities, Holder directs his lawyers to consider viable alternatives to federal prosecution. They must consider not only whether an important federal interest is being served by bringing these monster indictments. They must also consider whether there are viable alternatives to federal prosecution, meaning prosecution by state courts or perhaps no prosecution at all (oh my!).
Focusing on the dreaded “mando’s” he states in a separate memo released that same day: “We must ensure that our most severe mandatory minimum penalties are reserved for serious, high-level, or violent drug traffickers. In some cases, mandatory minimum and recidivist enhancement statutes have resulted in unduly harsh sentences and perceived or actual disparities that do not reflect our Principles of Federal Prosecution. Long sentences for low-level, non-violent drug offenses do not promote public safety, deterrence, and rehabilitation. Moreover, rising prison costs have resulted in reduced spending on criminal justice initiatives, including spending on law enforcement agents, prosecutors, and prevention and intervention programs. These reductions in public safety spending require us to make our public safety expenditures smarter and more productive.” Makes you wonder if Holder even knows what his prosecutors have been up to all these years.
What this means for actual charging decisions remains to be seen. Holder is taking away every spoiled Assistant U.S. Attorney’s favorite toy. How on earth can they go after the ‘bigs’ if they can’t drag the little guys through the dirt? Notice something else. The unwitting force behind these changes are those members of Congress who foisted the sequester and other budget cuts on the criminal justice system. It is not only public defenders and appointed counsel who are being forced to work for free every Friday. Prosecutors have budget problems too. We spend billions investigating, prosecuting and ultimately housing defendants in prison. The well is running dry. And, hopefully, so it the poison in it, the evil magic weapon called mandatory minimums.
Of particular interest is the impact on Holder’s policies of changes in marijuana laws in several states. That is what we will look at next. For now, we can all hope that perhaps Granny and ‘Lil Sis won’t have to sell out their flesh and blood just to save their own hides. Hope springs eternal.