Some Federal Prosecutors Apparently Didn’t Get The Memo About Going Easy on Low-Level Drug Offenders

Page Pate is a criminal defense attorney. He is a founding member of the Georgia Innocence Project.

Last week, the United States Department of Justice (DOJ) announced that there were fewer federal drug cases brought in fiscal year 2015. Less than half of those cases triggered the severe mandatory minimum sentences that often punish low-level, non-violent drug offenders with a decade or more in federal prison, even if it’s their first offense.

The fact that fewer low-level drug offenders are facing steep mandatory minimum sentences is certainly good news. The DOJ is following through on its stated objective of addressing the persistent problem of non-violent, low-level drug offenders being prosecuted as if they were major drug traffickers.

All of this really started in 2013 when then Attorney General Eric Holder issued two memos outlining how federal prosecutors should consider the use of mandatory minimum penalties in drug cases.  Mr. Holder realized that federal prosecutors have a lot of discretion in deciding which defendants to charge in federal court, and whether they should charge these defendants with a drug quantity that would trigger a mandatory minimum penalty.

In the first memo, if the person doesn’t meet requirements like being a gang leader or committing a violent offense then prosecutors should not charge them with a quantity of drugs that would trigger a mandatory minimum penalty. That means that the person being charged would not face a mandatory minimum sentence regardless of whether the person entered a guilty plea or was later found guilty after a trial. The judge would be free to sentence the person based on the federal sentencing guidelines and other relevant sentencing factors without regard to any specific mandatory sentence that would normally be required.

In the same memo, Mr. Holder also outlined the factors that federal prosecutors should consider when deciding to ask for an enhancement to a person’s sentence because of a prior felony drug conviction. “851 enhancements”  generally double the mandatory minimum sentence for a person who has a prior felony drug conviction. If a person has two or more prior felony drug convictions, then this section can trigger a mandatory life sentence even if the offense was relatively minor and involved no threat of violence.

Mr. Holder instructed federal prosecutors to consider the same kind of factors in making the decision to ask for an 851 enhancement as they would consider in deciding whether to charge a drug quantity to trigger a mandatory minimum sentence. The consideration for an 851 enhancement is a little different, however, because prosecutors should begin with the idea that they are not to file these enhancements unless a person meets all of the following criteria including being a organizer, using violence and having a prior history.

In a subsequent memo, Mr. Holder specifically instructed federal prosecutors around the country not to use the threat of an 851 enhancement to encourage guilty pleas. Instead, the decision as to whether to file an 851 enhancement should be made at the beginning of the case. The filing of an 851 enhancement should never have anything to do with whether or not a defendant decided to enter a plea or go to trial.

These memos represented a significant change to DOJ policy in federal drug prosecutions. According to the DOJ, the new policy was intended to address the problem of locking up low-level and non-violent drug offenders and punishing them with extraordinarily lengthy prison sentences which did little to improve public safety or deter crime, but did significantly increase the costs of incarceration.

Defense lawyers are generally an optimistic group, so we expected (naively, it appears) that these policies would be universally adopted by federal prosecutors across the country.

Well, that didn’t happen. While the policy was begrudgingly and reluctantly accepted by most federal prosecutors, adoption of the new policy was far from universal. Many federal prosecutors did not agree with the change in policy and wanted to continue to use mandatory minimum sentences and 851 enhancements to coerce guilty pleas and cooperation from low-level drug offenders.

And why wouldn’t they? It is much easier as a federal prosecutor to avoid trial and obtain guilty pleas when you are able to use these stiff mandatory minimum sentences as a threat to any person who may want to reject the government’s usually one-sided plea offers. Holding these mandatory minimum penalties over a person’s head also encourages the type of “cooperation” that is common in federal drug cases. Defendants facing federal charges will do whatever is necessary to reduce their exposure and will gladly snitch on other individuals.

Unfortunately, this “cooperation” usually bears little resemblance to the truth. To make things worse, federal prosecutors do not always carefully evaluate this “cooperation” to determine if it’s credible or not. They just put the snitch on the stand, tell the jury he or she has agreed to “tell the truth,” and let the chips fall where they may.

Old habits can die hard. I realized that this new policy was not being followed everywhere when I had to fight a local federal prosecutor in a drug case last year. That prosecutor had charged all of the defendants with quantities that would trigger the severe mandatory minimum penalties even when the case involved very small quantities of drugs. A week before trial, this same prosecutor then doubled-down on the defendants by filing 851 enhancements for everyone who had a prior drug conviction and had not yet agreed to accept the government’s plea offer.

I was amazed that this particular prosecutor was ignoring the new policy, so I appealed the decision to the local supervisor (Chief of the Criminal Section) and the United States Attorney for that district. I also filed a motion with the court arguing that the prosecutor was being vindictive and trying to coerce guilty pleas. While that motion was pending, I requested the assistance of the DOJ in Washington and they were willing to try to help.

But it never got that far. Fortunately for my client and me, we won the case at trial so we didn’t have to worry about any mandatory minimum sentence. (Of course, the fact that my client was facing automatic life in prison if convicted made my job a whole lot more stressful than it needed to be.)

While we were lucky, the other defendants who went to trial were convicted and ended up receiving the enhanced penalties. One defendant, who was clearly a minor player in the drug world, received a mandatory life sentence for what amounted to a very small amount of crack cocaine. His case is still on appeal.

So what can a lawyer do if the local federal prosecutor refuses to follow the new DOJ policies? Unfortunately, although the new policies are very favorable to most defendants, they do not create any sort of right that a defendant or his lawyer can enforce in court. I think the best way to deal with a prosecutor who seems to be ignoring current policy is to request a personal meeting with the prosecutor to politely remind him or her of the change in policy and the Holder Memos.

If that doesn’t work, then the defense lawyer needs to request a meeting with the prosecutor’s supervisor, either a section chief or the Criminal Chief. No defense lawyer should ever be concerned about “going over the prosecutor’s head” or offending anyone by doing this. The supervisors in a U.S. Attorney’s Office are there for a reason —- to insure that the prosecutors in their office follow proper procedures. And that includes the consistent application of current DOJ policies.

If you can’t get anywhere with the supervisors, then keep going up the ladder and ask to speak directly with the U.S. Attorney and the First Assistant. The U.S. Attorney is an individual appointed by the President to represent the government in that particular federal district. They are ultimately responsible for the prosecutorial decisions made in their office. In my experience, U.S. Attorneys are generally sensitive to the directives of “Main Justice” in Washington, although they may be “hands-off” when it comes to individual cases being prosecuted by their office.

If the entire local office seems unwilling to listen, then you can go straight to “Main Justice” in Washington. That’s what I did, and it definitely helped. The local office seemed more responsive to my concerns when they knew I had the attention of someone serious in D.C.

It’s important to understand that DOJ officials may be reluctant to intervene in individual cases unless it is clear that the local U.S. Attorney’s Office has been ignoring the change in policy as a general rule. The DOJ sets policy, it does not generally intervene in a particular case unless it’s an especially high-profile or sensitive prosecution.

While I am disappointed that some offices seem to ignore the Holder Memos and this new policy, I am certainly pleased to see that the total number of federal drug prosecutions have decreased and that fewer people are facing severe mandatory minimum sentences. This shows that the policy is working.

Now it’s time for the DOJ to take the next step and make sure that this policy is being applied in every district in the country. There is no reason why defendants in some federal districts should get better treatment than defendants in other districts simply because local prosecutors may not like the new policies. Only when this policy is universally adopted will it have the intended effect of creating fairness and avoiding disparity in the federal criminal justice system for low-level drug offenders across the country.

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