We as a nation still have a long way to go before our drug policies comport with modern notions of smart policing and smart prosecuting, let alone fairness, but this is an encouraging step in the right direction.
The important conversations now will be about exactly how this new policy will be applied, and what is to follow. The new policy still vests an extraordinary amount of power and discretion in the hands of the prosecutor, but it is, nevertheless, the sign of perhaps a new day.
Looking at a hypothetical case
Here is a hypothetical case that shows the magnitude of the change. (It presents a somewhat sympathetic defendant, but after 19 years as a prosecutor, and 10 of them as a federal prosecutor, I saw a version of this story over and over.)
Jane Doe had a severe substance abuse problem when she was 20. In order to support that habit, she sold a few small glassines of heroin to an undercover officer, was arrested, pled guilty, and was sentenced to 6 month's imprisonment. After serving her time, Jane cleaned herself up, got a job, and started a family.
But seven years later, Jane falls on hard times and her family is in dire financial situation. She reconnects with an acquaintance from the old neighborhood, who introduces Jane to a "cousin," called Louie. Louie offers Jane the chance to earn $500 if she'll pick up a certain individual at the airport. She is told the individual will have drugs and it is her job to deliver the person (and the drugs) to a certain location. She agrees. But Jane is pulled over by the DEA, she and the courier are arrested and the DEA recovers one kilogram of heroin from the courier's luggage.
Jane confesses and tries to cooperate but only knows the acquaintance's first name, and she only has a cell number for Louie. Immediately after her arrest, Jane is taken to the DEA’s offices, where she tries to record a call to Louie, but finds his cell phone number has been dropped. The courier knows even less and agrees to plead guilty first.
Under the prior DOJ policy, the scale overwhelmingly guided federal prosecutors' decision making; that is, the drug’s weight determined the charge. And the DOJ's overarching policy of charging the highest provable offense generally carried the day.
So, under the old policy, Jane would be charged with possession with intent to distribute one kilogram of heroin. That crime carries a minimum sentence of 10 years and a maximum sentence of life.
Once charged with an offense that carries a mandatory minimum, there are basically only two ways out from under the mandatory sentence.
The first is the "safety valve" provision in our federal penal code. In this case, however, Jane wouldn't qualify because she has too many "criminal history points" from her one prior drug case. The other way out from under is cooperating, providing information to law enforcement that enables them to prosecute others. In our hypothetical, Jane wasn’t able to do so.
In some federal districts, the prosecutor might even seek a higher sentence - a minimum of 20 years - because Jane has a prior drug felony charge.
Under the DOJ's new policy, a 10- or 20-year sentence would likely turn into about 5 years or less. Since Jane's offense didn’t involve violence or weapons, because she did not have significant ties to a major drug ring, because she was not a leader in the drug operation, and because she does not have an extensive criminal history, the prosecutor, satisfied that Jane tried to cooperate but could not actually further the investigation, may charge Jane with possessing a unspecified quantity (not a kilo) of heroin with intent to distribute it, thereby permitting the judge to impose a sentencing under the 10-year mandatory minimum.
Under the advisory sentencing guidelines, Jane's suggested sentencing range would be around 5 or 6 years, and the judge would be permitted to impose less if he or she felt it was appropriate.
Some might say this suggested sentencing range is still too harsh, but it is certainly better than a decade.
I will not attempt to discuss whether mandatory minimums have any place in a modern penal code here. Defenders of mandatory minimums might say that while facing 10 years might not actually deter someone from selling drugs (and that's what studies have shown), facing a harsh mandatory minimum sentence after one is caught certainly makes one more likely to cooperate against other participants in the crime.
The threat of a mandatory minimum sentence against a mid-level drug gang member can motivate him to wear a wire and expose the entire gang. Prosecutors can say targeting mid-level gang members broke open and entirely dismantled dangerous street gangs, and even solved prior gang homicides. I have seen such cases made.
I have heard about the letters from a grateful community when their local park or apartment complex is reclaimed from violent drug dealers. This new policy does nothing to erode that powerful tool. It merely guides prosecutors to use it sparingly, carefully.
What are the policy implications?
Does this new policy mean that the feds will refer more drug cases to our already-overburdened local prosecutors, forcing them to triage and create a revolving door for drug dealers, such that we see a return of high drug crime and drug violence? Of course not.
The DEA is probably one of the most advanced agencies in terms of cultivating relationships with local law enforcement to coordinate their interdiction efforts. This change doesn’t mean the feds can't prosecute a case, and if the crime problem in a locality demands their resources, they can be applied and the prosecutions need not necessarily involve mandatory minimum sentences.
Does this fairer and more flexible charging policy fix everything? No. It remains to be seen how prosecutors in the 94 different U.S. Attorneys' Offices around the country interpret some of the new guidelines.
How much they weigh a defendant's effort to cooperate or how they quantify a defendant's "ties" to a drug organization. And it remains to be seen how meaningfully federal prosecutors evaluate a defendant's criminal history.
The DOJ's new policy suggests that the new charging approach should be applied only to defendants with less than three criminal history points. If our Jane Doe had still been on probation for her prior drug case, she'd be out of luck. Mechanical adherence to the number 3 probably won't achieve the results we're looking for.
At a minimum, DOJ should allow defendants with pending cases that meet the new guidelines to plead to superseding charging documents consistent with the new policy to avoid unwarranted mandatory sentences.
In addition, if a prosecutor intends to seek a sentence that is double the mandatory minimum in a drug case, he or she should be required to seek approval from the DOJ. Current DOJ policy requires a prosecutor to seek Main Justice approval before he or she gets a wiretap or issues a subpoena to a reporter.
Shouldn't the DOJ require the same level of approval before a prosecutor is authorized to double a sentence for a drug crime? Centralizing this kind of decision-making will go a long way to ensure that prosecutors in Georgia are not "doubling" more than those in New York.
Going forward, since DOJ has acknowledged that it needs to drastically change the way it charges drug crimes because, as Attorney General Holder put it, "too many Americans go to too many prisons for far too long and for no good law enforcement reason," shouldn't the DOJ take this opportunity to look back?
What about the federal inmates - the Jane and John Does - who would qualify for the more lenient charging policy if they were charged today, but who will continue to serve out 10 or even 20 year sentences because they were imposed last year?
The DOJ should designate staff from each of the 94 U.S. Attorney's Offices to evaluate prior closed cases in order to identify defendants who may currently be serving 5, 10 or 20 year mandatory sentences when the facts of their closed cases fit the criteria for more flexible charging decisions today.
One way to deliver relief in meritorious closed cases would be for the Obama administration, with the DOJ's support, and bipartisan support from Republicans, to breathe some life into our anemic federal Pardon Office.
Through that office, again, with DOJ and bipartisan support, certain deserving defendants could have their sentences commuted.
The examination of these prior cases would take resources and manpower, but the task could be accomplished through public-private partnerships, including a willing army of law students, law schools, and pro bono attorneys.
Nancy Hoppock is the Executive Director of the Center on the Administration of Criminal Law at New York University. The Center’s Mercy Project pursues sentencing reductions or commutations for federal prisoners who have demonstrated remarkable rehabilitation, or who suffer from serious medical conditions.
Before joining NYU, Hoppock served as the Executive Deputy Attorney General for Criminal Justice at the New York Attorney General's Office, and she was an Assistant United States Attorney at the U.S. Attorney’s Office in the District of New Jersey from 2001 to 2010.
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