Holder’s Sentencing Reform Speech: Will New Policy Live up to the Rhetoric?

August 13, 2013
Guest Post

by Alex Kreit, Associate Professor of Law, Thomas Jefferson School of Law, San Diego. Kreit is author of the casebook, Controlled Substances: Crime, Regulation, and Policy and the ACS Issue Brief, “Toward a Public Health Approach to Drug Policy.”

Attorney General Eric Holder announced a new charging policy that has the potential to eliminate mandatory minimum sentences in many drug cases. Holder’s Aug. 12 announcement marks the most significant policy change in what has been, until now, a largely rhetorical shift away from the failed war on drugs

The new prosecutorial guidelines are aimed at one of the most disgraceful and frequently criticized features of drug war-era mandatory minimum sentencing: tying punishments to drug type and quantity in low-level cases.  The practice began with a hastily drafted law passed by Congress in 1984, at the height of drug war fervor.  The measure sought to increase and standardize punishments in federal drug cases through mandatory minimum penalties.  Legislators claimed that the law would create a two-tiered penalty structure, subjecting so-called “serious” drug traffickers to five-year minimum sentences and “major” traffickers to ten-year prison terms.  (These mandatory penalties can increase to 20-years or even life for defendants with prior felony drug convictions.)

The problem is that while Congress referred to “serious” and “major” traffickers in debating the mandatory minimum provisions, the five- and ten-year penalties are “triggered not by role but by drug type and quantity instead.”   And, it turns out; drug type and quantity are a poor measure of a drug offender’s culpability. 

Take drug couriers for example.  Drug couriers are considered expendable by drug organizations.  Most are addicts or otherwise down-on-their luck.  In San Diego, where I live, drug organization recruiters seek out homeless people for this job just a few blocks from the heart of downtown.  They might be paid $1,500 to transport hundreds of thousands of dollars’ worth of drugs across the border. 

Drug couriers may be at the bottom of the drug organization’s pecking order.  But the large quantities of drugs they transport means they are treated like kingpins under the mandatory minimum sentencing laws.  The same phenomenon can result in shockingly long sentences for other peripheral participants in drug transactions, such as lookouts, day laborers, and go-betweens.

Holder’s new policy holds the promise of eliminating mandatory penalties for many of these low-level offenders.  It instructs prosecutors not to include drug quantity when drafting indictments for certain drug defendants.  As a result, sentencing judges would no longer be bound by the mandatory minimum penalties in those cases.  Reports indicate that the policy will apply to defendants who meet 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.” 

There’s no question that Holder’s announcement is a turning point in sentencing and drug policy reform.  But, just how impactful will it be?  Will this policy lead to a sea change in how the federal system treats low-level drug offenders?  Or, will local prosecutors look for ways to circumvent the policy and try to continue with business as usual?

Unfortunately, the Department of Justice’s approach to medical marijuana under Obama provides a good reason to question how diligently federal prosecutors will actually follow Holder’s policy. 

Shortly after Obama took office in 2009, Attorney General Holder’s office issued a memo providing prosecutorial guidance for medical marijuana case.  The memo advised federal prosecutors not to use their resources to pursue individuals who were in “clear and unambiguous compliance” with state medical marijuana laws.  The memo also noted, however, that the guidelines were just advisory and that local offices retained discretion to prosecute “even when there is clear and unambiguous compliance with existing state law.”

Despite this guidance, federal medical marijuana prosecutions have continued and even increased under the Obama administration

Understandably, some may ask whether Holder’s mandatory minimum policy will result in any real change at all.  If the medical marijuana memo did not impact prosecutions, why should we think this one will be any different?

While only time will tell, I believe that this new policy will be much tougher for prosecutors to evade, at least entirely.  For one thing, the medical marijuana memo was written in the broadest possible terms, emphasizing that it was “intended solely as a guide” and that “offices should continue to review marijuana cases for prosecution on a case-by-case basis.”  By contrast, the new mandatory minimum memo reflects an across-the-board, binding charging policy, intended to apply in all cases where the four criteria noted above are met. 

Nevertheless, the policy will leave room for discretion.  For example, how will phrases like “significant ties to large-scale gangs or cartels” be interpreted and who will be doing the interpreting?  Again, drug courier cases may prove to be a good test.  Most observers would say that couriers have a very tenuous link to drug cartels—they are hired hands with no involvement in the larger organization.  But, will federal prosecutors see it that way?  Will a local prosecutor who disagrees with the policy be able to claim that an addicted homeless courier has a “significant tie” to a drug cartel?  Or, will Holder’s office make these interpretive decisions?  What internal oversight and enforcement mechanisms will ensure consistent and good faith compliance with the policy?   

These are all questions that will need to be followed closely over the next few months to gauge the policy’s true impact.   

Now, however, is a time for advocates of drug policy and sentencing reform to celebrate.  Regardless of what happens next, the nation’s top law enforcement official has announced his formal disagreement with one of the most important features of federal drug war-era sentencing.  And that is a big deal.