Reality Check: Barely A Ripple, But A Ripple

In the aftermath of Attorney General Eric Holder’s announcement that the Department of Justice will change its charging mechanics slightly by omitting the quantity of drugs involved in order to circumvent mandatory minimums in certain drug prosecutions, the internet has done what it does best: create mass confusion and reflect common misunderstanding.

At Popehat, Ken White provides a clear, if lengthy, explanation of the mechanics of charging. Yet, the comments to the post showed how the bottom line was obscured by assumptions. First, there are remarkably few defendants who find themselves individually prosecuted in federal court for simple possession or relatively small distribution charges.

When the feds do drugs, they tend to be conspiracies, not individuals, so the person Holder seems to be talking about rarely shows up in a federal indictment. State courts, all the time, but Holder’s charging change has nothing to do with how state and local prosecutors charge, and the laws that apply in federal courts are not the laws in state and local courts. So the tons of small-time, non-violent offenders who filter through the system have nothing to gain from Holder’s announcement, and will continue to get whatever sentence state law mandates.

Moreover, a defendant who plays a minor/minimal role in a federal conspiracy is still charged in the same indictment as everyone else in the conspiracy, which means that they will be charged based on the total provable amount of drugs involved.  In a conspiracy, all alleged co-conspirators are legally responsible for the total amount of foreseeable drugs involved in the broader conspiracy, rather than just the amount they participated in or touched. So a guy carried five kilos from here to there, but the group moved 100 kilos?  Guess which quantity applies?

Already in place is the safety valve for defendants without a criminal history, where the defendant can trot into the U.S. Attorney’s office, tell his role in the offense, and be relieved of mandatory minimums. That’s been available since 1994, and is commonly used by those at the very bottom of the conspiracy pyramid to get them out from under.

Much as it pains me to write this, Bill Otis’ statement in this post at Politico is pretty accurate:

“It’s less than meets the eye,” said William Otis, who spent 18 years as a  federal prosecutor. “It’s not now and has never been the case that all low-level drug offenders are being swept up and charged with minimum mandatory sentences.  … It’s actually not going to change the on-the-ground reality very much at all.”

From a distance, we see the massive prison population and, without much further thought, assume that since all these human being must be coming from somewhere, any fix to the system will have a commensurately massive impact.  Sadly, that’s not how it works. I’ve painstakingly guesstimated every defendant over the past year whose sentence would have been altered by this change and the grand total is 42. Not exactly enough to put the Bureau of Prisons out of work.

Does that make Holder’s overhyped and misunderstood grand announcement a cynical political ploy? In terms of net impact, probably, but Josh Gerstein at Politico makes a point worth considering:

If the Obama administration succeeds in its new drive to rein in mandatory  minimum prison sentences, it will be a sign Democrats have carried out a kind of  political exorcism — finally putting to rest any lingering anxiety over the  “soft on crime” label that terrorized the party back in the 1980s and ’90s.

While there hasn’t exactly been rush by conservatives to applaud the move, there also haven’t been cries of “Dukakis” and “Willie Horton” either. So this relatively benign and insignificant change in federal charging was a low-risk throw-away to test the political waters for whether the time is ripe for the pendulum of tough-on-crime to begin its return swing.

To the extent this might signal the will to begin dismantling prison nation, the work ahead of staggering. First, Holder’s memo applies to a tiny fraction of people charged with one type of offense under federal jurisdiction. It has no applicability to any other offense or any other jurisdiction.

Second, after more than a generation of ever-increasing sentencing lengths, both participants in the legal system and the public have become inured to sentences of such astronomical length that we take for granted drug sentences, for example, that run for decades as being normal and appropriate. In the 1980’s, the idea that a defendant charged with drugs would be sentenced to 20+ years in prison would have been viewed as shocking and outrageous. That was a sentence fit for murder, not drugs. Today, we don’t blink at such a lengthy sentence.

Third, we are still perpetuating the myth of the low-level criminal, as if fairness and proportionality, effectiveness of legitimate sentencing purposes and financial impact only apply to those we don’t hate too much. While the Jean Valjean type defendants muster sympathy for obvious reasons, little headway will be accomplished until we begin recognizing that the embrace of thousand-year sentences non-low-level offenders is also part of the sentencing inflation that overcame the nation. As jaywalking became punishable by a decade in prison, sentences for financial crimes or larger scale drug dealing had to similarly be ratcheted up to reflect the relative level of severity.

Today, individuals convicted of non-violent crime are being sentenced to terms that exceed what might have been imposed for murder a generation ago. Until we come to grips with the “new normal” of grossly inflated terms of imprisonment for the “bad dudes” as well as the one we are prepared to deem not so bad, we won’t make headway in undoing the prison nation that has been to artfully constructed over the past 30 years.

But somebody had to take a chance and so something that exposed them to be called a criminal’s best friend. Holder did that, with no shortage of fine-sounding rhetoric even if the fix was so puny that it came nowhere near the hype. And the other team didn’t rip him a new one for it. This could well be the start of smart-on-crime for real, and that’s something that matters.

As for Ken’s observation, “great and terrible power, exercised with some lenience, is still great and terrible power,” let it serve as a firm reminder that this is just the first step, and an itty-bitty baby step at that, of what will be needed to return sanity to the criminal justice system.  And that’s assuming we can ever get back to a place where balance, fairness and proportionality are preferred to sentences of life plus cancer. Still, it has to start somewhere.

9 thoughts on “Reality Check: Barely A Ripple, But A Ripple

  1. Ken


    I suspect different districts have different experiences.

    At least during the 1990s, when I was an AUSA, and during the earlier 2000s, when I had a fair number of drug cases working on the indigent defense panel, mule cases were fairly common, including mule cases where the mule was a low-level mope. That may or may not have something to do with Los Angeles’ status as a hub.

    Also, it appears to me that different districts employ different levels of aggression when it comes to relevant conduct arguments. In CDCA the office typically tried to hit mules with the weight they were carrying, but generally didn’t try to hit them with all the weight that might be attributed to the conspiracy. That, of course, merely emphasizes the discretionary element.

    1. SHG Post author

      No doubt that’s true, as it is in EDNY because of JFK and Southern District of Florida because of MIA as well. But these are still outliers, as opposed to the Northern District of Bumfuck where no mule ever goes. Even then, how many mule cases did you have in LA a year. A dozen? A hundred at most? When we’re talking about clearing out 100,000 prisoners from federal correctional centers, this will have negligible impact. Compared to the volume of minor possession and sale cases running through state court, it’s a drop in the bucket. Notably, many of the mules coming into JFK end up in state court in Queens, as EDNY wants nothing to do with them clogging up their docket with Mickey Mouse indictments.

      This has to be considered in context, and there is no substantial number of low level federal drug defendants, and even less who can’t valve. De minimis non curat lex.

      1. Alex Bunin

        I practiced in both Northern and Southern Bumfuck and I represented plenty of single defendant federal criminal cases with relatively small drug amounts. I tried a one-rock case against “the” USA for EDTX in the mid-90’s. However, until there is a federal sentencing scheme where a first-time drug offender can avoid prison upon conviction, the AG is simply rearranging the deck chairs on an ill-fated ocean liner.

        1. SHG Post author

          Well, between you (who certainly knows his Bumfucks) and Ken, I defer on the point of individual low level offenders. Apparently, they tend not to make my radar as much as you guys. However, as you also note, there remains a huge chasm between not getting the mandatory min and still getting prison, despite Holder’s rhetoric about destroying families and communities with excess incarceration.

  2. Pingback: The Eric Holder Memorandum on Mandatory Minimum Sentences, Explained | Popehat

  3. Wheeze The People™

    So what you’re saying is that the uptick in demand for clowns will only be nominal?? . . . Drats, I’ve been humming “Send in the Clowns” for the last day. Now I’m gonna have to change my tune, I guess . . .

  4. Fubar

    SHG wrote:

    And the other team didn’t rip him a new one for it. This could well be the start of smart-on-crime for real, and that’s something that matters.

    I agree with your points, and yes, it matters.

    From experience as a longtime observer, and once briefly a micro-smalltime non-federal defense practitioner, I think there is a readily recognizable limit on how long it will matter, or whether it can grow. It will matter only until the next politician drums up the next panic to “save the children” from the next drug of opportunity.

    One can hope we’ve run out of drugs to catalyze panic, but I doubt it. And I know we haven’t run out of opportunist politicians who “round about the cauldron go; In the poison’d entrails throw.”

  5. Pingback: Clarifying the problems with mandatory-minimums: why it’s okay to let them go | a public defender

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