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Tuesday, Apr 24, 2018
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Legal experts examine call for fewer mandatory drug sentences

TAMPA — U.S. Attorney General Eric Holder’s directive designed to reduce sentences for some federal drug offenders is “a big deal,” according to a Tampa attorney who works with the federal Sentencing Commission.
“I think it will make a significant difference in the way cases get handled,” said James Felman, who serves as the American Bar Association’s liaison to the Sentencing Commission and has previously served on and chaired the commission’s practitioner’s advisory group.
Holder, in a speech in San Francisco on Monday, said the criminal justice system is “in too many respects broken” and has incarcerated too many people for too long. The attorney general called for a “fundamentally new approach” to “persistent needs and unwarranted disparities.”
“While the entire U.S. population has increased by about a third since 1980, the federal prison population has grown at an astonishing rate – by almost 800 percent,” Holder said. “It’s still growing – despite the fact that federal prisons are operating at nearly 40 percent above capacity. Even though this country comprises just 5 percent of the world’s population, we incarcerate almost a quarter of the world’s prisoners.”
Holder noted there are bipartisan efforts in Congress to give judges more discretion in sentencing drug offenders and said it’s time to rethink mandatory minimum sentences for nonviolent drug suspects. He directed federal prosecutors to curtail filing charges that result in such sentences.
In federal drug cases, there are two areas where minimum mandatory sentences come into play. Depending on the quantities of drugs, the minimum mandatory sentences for first-time offenses are either five or 10 years.
Under legal enhancements prosecutors can seek for defendants with previous criminal histories, a defendant with one prior felony conviction can see a five-year minimum sentence increase to 10 years and a 10-year minimum increase to 20 years. With two prior felony convictions, a 10-year minimum mandatory sentence becomes mandatory life.
Under what is known as a “safety valve,” some first-time, nonviolent offenders can avoid mandatory minimum sentences if they fully admit to their conduct and if their offense did not involve the use of a firearm.
Holder directed prosecutors to not bring charges that trigger minimum mandatory sentences for nonviolent suspects who are not high-ranking members of a criminal organization and who do not have significant criminal backgrounds. He also directed prosecutors not to seek sentencing enhancements for defendants “unless the defendant is involved in conduct that makes the case appropriate for severe sanctions.”
To determine that, Holder directed prosecutors to consider factors such as whether the defendant was the leader of a drug organization or was involved in the use or threat of violence or had a history of violent conduct.
“It remains to be seen yet how this advice is implemented in the field,” Felman said. “It could potentially have a very big impact.”
Acting U.S. Attorney Lee Bentley for the Middle District of Florida said his office has scaled back its requests for enhancements over the last few years. About 10 years ago, he said, the Justice Department directed prosecutors to seek enhancements in almost every case they could be applied.
“We’ve relaxed the policy in the last few years even before the attorney general’s announcement,” Bentley said.
The former policy, he said, led to some harsh treatment.
“What is really unsettling is sometimes the defendants have received no prison time or almost no prison time for their prior felony drug convictions, so they’ve never faced any type of serious punishment for their drug offenses, and they go from that to mandatory life in prison,” Bentley said. “There’s no graduation or escalation of penalties.”
Holder’s new policy, Bentley said, will likely result in even fewer sentencing enhancements.
Bentley said officials in his office are examining Holder’s instructions to evaluate its full impact. But he said he didn’t think it would apply to many cases.
“We do not do a significant number of lower-level drug cases,” Bentley said. “When we do, it is typically because we believe that the prosecution of lower-level dealers will allow us to move up the chain and prosecute a larger organization, including the ringleaders. On other occasions, we may prosecute lower-level dealers when there’s a particular problem in a community and the state and local authorities ask us to get involved to help them deal with a specific problem.”
But Bentley said the prosecutions to help particular communities are not happening as much as they used to. “We simply don’t have the resources to prosecute many lower-level drug dealers unless we’re confident it will allow us to move up the chain and prosecute larger dealers, or an offender poses a particular risk of violence.”
Chief Assistant Federal Public Defender James Skuthan said the policy change could potentially affect “a lot of cases.”
“Most of our cases, I can safely say, are nonviolent offenders,” Skuthan said. “We’re always going to have cases where the defendant is using a firearm or involved in threats of violence. We also have a significant number where the defendants are low-level drug dealers who are non violent and who do not use weapons…We have a fair number of cases where people swallow drugs and bring them into the country.”
Federal prosecutions of street-level dealers have gone down in recent years, Skuthan said. “It used to be if you have six grams of crack, which isn’t much, you would get a five-year mandatory minimum. They have raised it to an ounce. That’s a big difference.”
Felman said he represented a defendant who got involved in a large shipment of marijuana. Felman said his client only allowed the traffickers to store the marijuana at his house for one day and wound up being sentenced to five years in federal prison.
Bentley said the practical application of Holder’s announcement “is something that will play out over the next few months and years. ... I think it is an important shift.”
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Twitter: @ElaineTBO
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