Attorney General Eric H. Holder Jr.’s broad effort to eliminate mandatory minimum prison sentences for nonviolent drug offenders and reduce sentences for defendants in most drug cases is facing resistance from some federal prosecutors and district attorneys nationwide.
Opponents of the proposal argue that tough sentencing policies provide a critical tool to dismantle drug networks by getting cooperation from lower-level defendants and building cases that move up the criminal chain of command.
Longer prison terms for more criminals have led to a significant decline in the crime rate over the past 20 years, these critics say, and they argue that Holder’s proposed changes are driven by federal budget constraints, not public safety.
“Rewarding convicted felons with lighter sentences because America can’t balance its budget doesn’t seem fair to both victims of crime and the millions of families in America victimized every year by the scourge of drugs in America’s communities,” Raymond F. Morrogh, commonwealth’s attorney in Fairfax County and director at large of the National District Attorneys Association, testified Thursday to the U.S. Sentencing Commission.
Holder on Thursday endorsed an amendment to federal sentencing guidelines that would reduce sentences for defendants in most of the nation’s drug cases. The commission, an independent agency that sets sentencing policies for federal judges, is considering the change, which it proposed. This followed the attorney general’s announcement in August that low-level, nonviolent defendants would not automatically be charged with federal offenses that carry mandatory minimum sentences.
“This straightforward adjustment to sentencing ranges — while measured in scope — would nonetheless send a strong message about the fairness of our criminal justice system,” Holder said of his latest effort. “And it would help to rein in federal prison spending while focusing limited resources on the most serious threats to public safety.”
The prospect of ending mandatory minimum sentences for drug offenses had drawn fire from the National Association of Assistant U.S. Attorneys, which has been lobbying senior lawmakers to try to prevent legislation that would change the system.
“We believe our current sentencing laws have kept us safe and should be preserved, not weakened,” said Robert Gay Guthrie, an assistant U.S. attorney in Oklahoma and president of the prosecutors’ organization. “Don’t take away our most effective tool to get cooperation from offenders.”
The organization that represents line federal prosecutors has written letters to Holder, Senate Judiciary Committee Chairman Patrick J. Leahy (D-Vt.) and Sen. Charles E. Grassley (Iowa), the panel’s ranking Republican, urging them not to change the sentencing rules. Guthrie said that 96 percent of about 500 prosecutors who were surveyed in an association poll did not support Holder’s plan.
But other assistant U.S. attorneys — as well as several who were interviewed — said the new guidelines would reduce prison overcrowding and would be more equitable to certain defendants who can face severe sentences under the current system.
“It allows us to be more fair in recommending sentences where the level of culpability varies among defendants in a large drug organization, but where the organization itself is moving large quantities of drugs,” said John Horn, first assistant U.S. attorney in the Northern District of Georgia. “Before the new policy, every defendant involved with over five kilos of coke would be subject to a minimum 10 or 20 years, whether he was a courier, someone in a stash house, a cell head or an organizational leader, and those distinctions can be important.”
Or, as Neil MacBride, a former U.S. attorney for the Eastern District of Virginia, put it: Former Mexican drug lord “Chapo Guzman and some low-level street dealer in Richmond simply don’t pose the same existential threat to society.”
In a recent case in Georgia, Edward Vaughn, 57, was charged in a drug-distribution and money-laundering case that involved an organization trafficking more than 500 grams of heroin as well as more than five kilograms of cocaine. Vaughn was implicated in only one of the heroin transactions.
Under the old rules, a conviction for trafficking 500 grams or more of heroin required a five-year mandatory minimum sentence, but it increased to 10 years if the defendant had a prior drug conviction, as Vaughn did, Horn said. It was a 2006 conviction for possessing a small amount of crack cocaine and Horn said that prosecutors decided the case did not warrant the severe additional 10-year mandatory minimum sentence for the prior conviction. Instead of 15 years, Vaughn’s sentence would be 78 to 97 months under the new guidelines.
“The new policy allows us to look at each defendant individually to see if it’s really justified to seek a mandatory minimum sentence,” Horn said.
The Georgia case is exactly the kind that Holder was targeting when he announced in August one of the most significant criminal justice policy shifts in years, officials said.
“This is a sea change for assistant U.S. attorneys,” said Yates, who was appointed by President Obama after working as an assistant U.S. attorney for more than 20 years. “They grew up in a system in which they were required to seek the most serious charge, which often resulted in the longest sentence. Now, the attorney general is saying, ‘Look at the circumstances of every case and his or her prior criminal history in determining the fair and appropriate charge.’ That’s a lot harder than robotically following a bright line rule.”
Timothy J. Heaphy, the U.S. attorney for the Western District of Virginia, said prosecutors in his office at first had concerns similar to those of the association. “But as time goes on,” he said, “people are understanding that we’re spending less money on prisons and it is more fair to tailor our charging discretion.”
In the end, a Justice Department official said, assistant U.S. attorneys are free to express their opinions internally, but they don’t make policy. They must follow guidelines, the official added.
Indeed, when Guthrie was asked Thursday about Holder’s newest proposal, he acknowledged: “We’ll follow the direction of the attorney general. He’s our boss.”