Press vans lined Howard and 5th Streets in San Francisco Monday morning to hear Attorney General Eric Holder address the American Bar Association. In an auditorium directly across the street from one of San Francisco’s best medical marijuana dispensaries, Holder delivered a speech (see below), marking the first time any presidential administration has promised to make sweeping changes to the mandatory minimums that have come to cripple our criminal justice system. Yet there was no mention of one of the biggest criminal justice quandaries for this administration: the marijuana issue.
In a room of about 300 people, Holder discussed policy directives he, as of Monday, has issued to U.S. Attorneys to lessen the federal prison population by changing the way they're charging some non-violent drug cases, making allowances for the early release of elderly non-violent federal prisoners, and encouraging states to come up with diversion programs that would steer people away from prison and re-entry programs that would help reintegrate those who have gone to prison.
Perhaps the most prescient and insightful comment Holder made was that the current incarceration culture, and the effects of that on the poor and persons of color, breeds disrespect for the law. I couldn’t agree more.
During the first Obama administration, the President worked successfully to eliminate the disparity in federal sentencing for crack and cocaine offenses. Back in the early ‘80s, a short-sighted Congress passed barbaric mandatory minimums (five years for possession of five grams of crack) and sentencing guideline levels for crack crimes in a misguided attempt to lock away dealers. These problems were caused more by the economic climates of neighborhoods than the physiological effects of crack, as well as the stigmatization and marginalization of urban crack users and sellers by the rest of society (many of whom were also users), and resulted in families losing their loved ones and generations of kids visiting parents in prison who were there for no good reason other than trying to survive.
Mandatory minimums for federal drug crimes were passed throughout the mid-to-late ‘80s as a mechanism to streamline federal sentencing and get tough on drugs. As a result, generations of people were locked up by prosecutors who charged the majority of federal drug cases with the most serious offenses, forcing defendants to plead to heavy prison terms or face even heavier ones after a trial. In 1994, seeing the negative collateral consequences of making so many drug and weapons crimes mandatory minimum offenses, Congress passed legislation allowing for a safety valve where defendants with no criminal history or very little (we’re talking a single misdemeanor within the last 10 years) may be eligible for sentences that go under the mandatory minimums. However, anyone with a felony conviction could not take advantage of the safety valve, nor could anyone who possessed a weapon at the same time as the drugs (unless the defendant could show at sentencing by a preponderance of evidence that the gun did not have to do with the possession or sales).
Holder said he's ordered U.S. Attorneys to modify charging policy so that individuals involved in low-level drug sales could get a sentence more appropriate to the conduct, even if the person would not technically qualify for the “safety valve.”
There are problems with the safety valve that Holder did not address. For isntance, it currently doesn't apply to people who have any type of supervisory role in a drug organization. That could mean a middle man in a coke deal is denied a safety valve. And in most cases, the middle man is actually the most screwed; he has no valuable information for the government because his boss has already been caught. Only the true leader of the Drug Trafficking Organization has information useful to the government if their leaders aren’t charged yet, which can result in truly disparate sentences, the very thing the federal sentencing structure is supposed to eliminate.
Holder needs to encourage Congress to end mandatory minimums for all crimes, and in the meantime direct U.S. Attorneys to charge non-mandatory minimums in all drug and weapons cases that don’t involve violence. He also should encourage Congress to pass mandatory maximum punishments and eliminate minimums. That is individualized and more fair.
In addition, Holder should tell U.S. Attorneys to allow mid-level and even high-level drug dealers to take advantage of being charged with non-mandatory minimum sentences, and to make directives regarding which offenders for which probation should be advocated and max sentences that prosecutors should ask for based on certain conduct.
Moreover, Holder should direct U.S. Attorneys to agree that “owners” of marijuana businesses are eligible for the safety valve. The idea is co-owners of dispensaries that neither direct nor are supervised are different in kind than leaders of DTOs. Judge Wu in the Charles Lynch caseused this to find the defendant, a director of a dispensary, eligible for the safety valve.
Throughout his speech, Holder said that U.S. Attorneys should themselves make these changes. Though he discussed the need for increase in Congressional spending for federal public defender services, the AG failed to include them or any criminal defense attorney, or bar for that matter, in his proposals. The U.S. Attorneys’ offices are comprised of bureaucrats trying to justify the continued existence of their jobs which, under the current incarceration-based drug policy, means for them indicting and imprisoning more and more drug offenders.
Holder should also be making recommendations to change the policy of its Civil Asset Forfeiture Unit, which routinely goes after dispensaries and low-level marijuana growers’ personal homes.
The Justice Department must call on real federal defense lawyers - maybe start with forming committees made of Federal Indigent Defenders’ offices - who deal with the realities of federal sentencing to make sure changes happen, and routinely survey sentencing and charging decisions by the U.S. Attorneys. As of now, charging decisions at many levels are unchecked, except by rubber stamp grand juries that hear only from the prosecution.