Assessing the Justice Department’s New Policy on Drug Offenders

In a speech to the American Bar Association today, Attorney General Eric Holder announced a potentially important new change in Justice Department policy on charging drug offenders. For reasons noted by Tom Angell of the Marijuana Majority, this is potentially an important step in curbing at least some of the excesses of the War on Drugs. But, as is often the case, the devil is in the details. Here’s the relevant passage in the speech:

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.

This is promising, but is a fairly vague statement of the criteria by which federal prosecutors are now supposed to determine whether to charge drug trafficking defendants with “offenses that impose draconian mandatory minimum sentences.” The New York Times has a slightly more detailed description of the new policy:

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.

The key question, it seems to me, is whether the exceptions for defendants who have “significant ties to large-scale gangs or cartels” and those who have a “significant criminal history” are likely to swallow the new rule. How close do ties to a gang or cartel have to be before they qualify as “significant”? Do previous convictions for drug trafficking count as a “significant” criminal history? How much evidence is enough to conclude that the defendant really does have ties to a gang; is a preponderance of evidence or proof beyond a reasonable doubt required, or is circumstantial evidence going to be enough? In many inner city neighborhoods, a high proportion of all drug offenders probably have at least some ties to gangs or cartels. The nature of illegal markets makes it dangerous and difficult to function within them without such connections. I hope to get answers to these questions once the text of the DOJ memo becomes available.

Unfortunately, there is some reason for skepticism based on the administrations’ past history with drug policy. During the 2008 campaign, then-candidate Obama promised to stop medical marijuana raids in states where medical marijuana is legal under state law. After issuing an equivocal 2009 memorandum that seemed to urge prosecutors not to go after such cases, the DOJ later repudiated the idea of stopping such raids, and eventually became more hostile to medical marijuana than any previous administration. The administration’s overall record on the War on Drugs is similarly dubious. Attorney General Holder himself has a long record of supporting an aggressive War on Drugs.

That said, there are many positives in Holder’s speech, including his support for reducing sentences for drug offenders, and his strong statements decrying the unnecessary imprisonment of numerous nonviolent offenders guilty only of victimless crimes. It will be interesting to see whether these statements will lead to significant policy changes.

UPDATE: Here is the DOJ’s newly released paper, Smart on Crime: Reforming the Criminal Justice System for the 21st Century. It is not, as far as I can tell, the same document as the memorandum sent to federal prosecutors discussed above. And it adds little in the way of details on the new drug offender policy. But, just in case, here is the most relevant passage:

It is time for meaningful sentencing reform. As a start, the Attorney General is announcing a change in Department of Justice charging policies so that certain people who have committed low-level, nonviolent drug offenses, who have no ties to large-scale organizations, gangs, or cartels will no longer be charged with offenses that impose draconian mandatory minimum sentences. Under the revised policy, these people would instead receive sentences better suited to their individual conduct rather than excessive prison terms more appropriate for violent criminals or drug kingpins. Reserving the most severe penalties for serious, high-level, or violent drug traffickers will better promote public safety, deterrence, and rehabilitation – while making our expenditures smarter and more productive.

The Attorney General also plans to work with Congress to pass legislation that would reform mandatory minimum laws. A number of bipartisan proposals – including bills by Senators Dick Durbin (D-IL) and Mike Lee (R-UT), as well as Senators Patrick Leahy (D-VT) and Rand Paul (R-KY) – show the emerging consensus in favor of addressing this issue.

The part on legislation to reform mandatory minimums (also mentioned in Holder’s speech) will, of course, require congressional approval. I commented on the issue briefly in this post. I am not opposed to mandatory minimum sentences on principle. But I do think the extremely high mandatory minimums for many federal crimes should be lowered, and in many cases the underlying conduct should simply be legalized.

UPDATE #2: I have made a few minor grammatical and phrasing corrections in this post.

UPDATE #3: I would be grateful to any reader who can send me a copy of the internal DOJ memo to prosecutors, or can point me to a link to it.

UPDATE #4: Here is an interesting more skeptical reaction to Holder’s speech than mine, written by a criminal defense lawyer.

UPDATE #5: I have now managed to locate an online copy of the internal memorandum to federal prosecutors. It is, to put it mildly, underwhelming. I analyze it more detail in this follow-up post.