Aug 12, 2013

Posted in Uncategorized

Prosecutorial Discretion and the Attorney General’s New Drug Policy

The Attorney General, at long, long last, is expected to instruct U.S. Attorneys to attempt to avoid unnecessary mandatory minimum drug sentences, by neglecting to write the quantity of drugs sold in an indictment, under certain circumstances, though this information can still be used at sentencing:

Under a policy memorandum being sent to all United States attorney offices on Monday, according to an administration official, prosecutors will be told that they may not write the specific quantity of drugs when drafting indictments for drug defendants who meet the following four criteria: their conduct did not involve violence, the use of a weapon or sales to minors; they are not leaders of a criminal organization; they have no significant ties to large-scale gangs or cartels; and they have no significant criminal history.

For example, in the case of a defendant accused of conspiring to sell five kilograms of cocaine — an amount that would set off a 10-year mandatory minimum sentence — the prosecutor would write that “the defendant conspired to distribute cocaine” without saying how much. The quantity would still factor in when prosecutors and judges consult sentencing guidelines, but depending on the circumstances, the result could be a sentence of less than the 10 years called for by the mandatory minimum law, the official said.

As a matter of policy I think this is a long, long overdue development. Frankly, I’m not sure what took five years here. I remember when I was clerking in 2009-2011, shortly after the enactment of the Fair Sentencing Act, the question came up of whether it was retroactive for the cases already in the pipeline. The courts have consistently held that it was retroactive (as a matter of text, but not fairness, they were wrong). At the time, I wondered, why is the United States even arguing against this position. Couldn’t the Attorney General simply concede that the FSA applies (like he later stopped defending DOMA). Of course, it would be up to the court to decide that question, but it would have been a huge deal for the United States to adopt that interpretation. That the United States argued this position counseled in favor of not making it retroactive. But they didn’t. I guess that approach of actually following the statute was Obama 1.0. Now, we are stuck with Obama 2.0.

Charlie Savage offers a cynical take:

Earlier in Mr. Obama’s presidency, the administration went through Congress to achieve policy goals like reducing the sentencing disparity between crack and powder forms of cocaine. But it has increasingly pursued a strategy of invoking unilateral executive powerswithout Congress, which the White House sees as bogged down by Republican obstructionism.

Previous examples, like Mr. Obama’s decision last year to issue an executive order allowing immigrants who came to the United States illegally as children to remain without fear of deportation and to work, have drawn fire from Republicans as “power grabs” that usurp the role of Congress.

I have been very critical of the President’s broad assertions of executive power, though I’m not sure if it applies here. Unlike his creative reading of the immigration statutes (a de facto implementation of the DREAM Act, as Justice Scalia noted in his Arizona dissent), prosecutorial discretion seems to give the United States a lot of leeway when charging crimes. There is no requirement that the United States prosecute certain crimes at all. Perhaps, they can let the states handle it. Or, resources are not sufficient to go after certain offenses. Or, the government may determine that certain crimes are more egregious, and others warrant less attention. It would seem that the broader power to choose which crimes to prosecute include the lesser power to include certain information in indictments.

Now, it could be argued that this is a willful attempt to evade mandatory minimums enacted by Congress. That’s also probably right. And if this evasion is appropriate, what other standards can be ignored?

Let’s see how this works. As a practical matter, many defendants will still be sentenced subject to the mandatory minimums. The quantity of drugs will invariably make it into the presentencing report. It’s not like the government will pretend the number doesn’t exist.

Update: Here are relevant excerpts of Holder’s remarks:

At the beginning of this year, I launched a targeted Justice Department review of the federal system – to identify obstacles, inefficiencies, and inequities, and to address ineffective policies. Today, I am pleased to announce the results of this review – which include a series of significant actions that the Department has undertaken to better protect the American people from crime; to increase support for those who become victims; and to ensure public safety by improving our criminal justice system as a whole. We have studied state systems and been impressed by the policy shifts some have made. I hope other state systems will follow our lead and implement changes as well. The changes I announce today underscore this Administration’s strong commitment to common sense criminal justice reform. And our efforts must begin with law enforcement.

Particularly in these challenging times – when budgets are tight, federal sequestration has imposed untenable and irresponsible cuts, and leaders across government are being asked to do more with less – coordination between America’s federal, state, local, and tribal law enforcement agencies has never been more important. It’s imperative that we maximize our resources by focusing on protecting national security; combating violent crime; fighting against financial fraud; and safeguarding the most vulnerable members of our society.

This means that federal prosecutors cannot – and should not – bring every case or charge every defendant who stands accused of violating federal law. Some issues are best handled at the state or local level. And that’s why I have today directed the United States Attorney community to develop specific, locally-tailored guidelines – consistent with our national priorities – for determining when federal charges should be filed, and when they should not.

I’ve also issued guidance to ensure that every case we bring serves a substantial federal interest and complements the work of our law enforcement partners. I have directed all U.S. Attorneys to create – and to update – comprehensive anti-violence strategies for badly-afflicted areas within their districts. And I’ve encouraged them to convene regular law enforcement forums with state and local partners to refine these plans, foster greater efficiency, and facilitate more open communication and cooperation.

By targeting the most serious offenses, prosecuting the most dangerous criminals, directing assistance to crime “hot spots,” and pursuing new ways to promote public safety, deterrence, efficiency, and fairness – we in the federal government can become both smarter and tougher on crime. By providing leadership to all levels of law enforcement – and bringing intelligence-driven strategies to bear – we can bolster the efforts of local leaders, U.S. Attorneys, and others in the fight against violent crime.

This is why I have today mandated a modification of the Justice Department’s charging policies so that certain low-level, nonviolent drug offenders who have no ties to large-scale organizations, gangs, or cartels will no longer be charged with offenses that impose draconian mandatory minimum sentences. They now will be charged with offenses for which the accompanying sentences are better suited to their individual conduct, rather than excessive prison terms more appropriate for violent criminals or drug kingpins. By reserving the most severe penalties for serious, high-level, or violent drug traffickers, we can better promote public safety, deterrence, and rehabilitation – while making our expenditures smarter and more productive. We’ve seen that this approach has bipartisan support in Congress – where a number of leaders, including Senators Dick Durbin, Patrick Leahy, Mike Lee, and Rand Paul have introduced what I think is promising legislation aimed at giving federal judges more discretion in applying mandatory minimums to certain drug offenders. Such legislation will ultimately save our country billions of dollars while keeping us safe. And the President and I look forward to working with members of both parties to refine and advance these proposals.

Secondly, the Department has now updated its framework for considering compassionate release for inmates facing extraordinary or compelling circumstances – and who pose no threat to the public. In late April, the Bureau of Prisons expanded the criteria which will be considered for inmates seeking compassionate release for medical reasons. Today, I can announce additional expansions to our policy – including revised criteria for elderly inmates who did not commit violent crimes and who have served significant portions of their sentences. Of course, as our primary responsibility, we must ensure that the American public is protected from anyone who may pose a danger to the community. But considering the applications of nonviolent offenders – through a careful review process that ultimately allows judges to consider whether release is warranted – is the fair thing to do. And it is the smart thing to do as well, because it will enable us to use our limited resources to house those who pose the greatest threat.

Finally, my colleagues and I are taking steps to identify and share best practices for enhancing the use of diversion programs – such as drug treatment and community service initiatives – that can serve as effective alternatives to incarceration.

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