Defense attorney Peter Wold has seen it time and time again in federal court. A client gets convicted of a low-level role in a drug case, but the judge lacks discretion in sentencing because the charge called for severe mandatory prison time.
That is likely to change after U.S. Attorney General Eric Holder said Monday that he's altering Justice Department policy so that fewer low-level, nonviolent drug offenders with no ties to gangs or cartels will be charged with offenses that impose mandatory minimum sentences. He also wants to work with Congress to give judges more discretion in sentencing.
Former Minnesota U.S. Attorney Thomas Heffelfinger praised Holder's effort to reduce the federal prison population, which has grown at a rate of 800 percent in the past 30 years and is running at 40 percent over capacity.
But he's concerned that Holder's directive that each of the country's 94 U.S. attorneys develop local policies to implement his strategy will inevitably mean a lack of consistency.
Holder laid out his plans in remarks to the American Bar Association in San Francisco, and received bipartisan support on Capitol Hill. There are roughly 25,000 drug convictions in federal court each year and 45 percent of those are for lower-level offenses such as street-level dealers and couriers and people who deliver drugs.
"I found his remarks inspiring," said Katherian Roe, chief federal public defender in Minnesota. "I wholeheartedly believe in his effort to forge a more just society."
In Holder's memo to the federal court districts, he made it clear he still wants mandatory minimum sentences, but not in as many cases, Roe said. A key factor in deciding to use such sentences or statutes should include whether the defendant has a significant criminal history, the memo said.
On the federal level, a significant history usually consists of offenses that add up to three or more "points" on a criminal scale. A drunken-driving charge and two disorderly charges in the previous 10 years could reach that total, said Roe.
In most drug cases, the sentence for a conviction has been set long before a judge is assigned, depending on which statute is used in filing charges, Roe said. A judge's hands are tied with a mandatory minimum, and it's frustrating to tell families that this is how the system works, she said.
"I welcome the opportunity for the most experienced person in the courtroom in the decision-making to make an appropriate sentence," she said. "We will see what happens when the changes are implemented."
Minnesota U.S. Attorney B. Todd Jones, recently confirmed as the next director of the Bureau of Alcohol, Tobacco, Firearms and Explosives, had already been re-prioritizing the cases handled by his office by focusing less on some drug cases and taking on more fraud, terrorism and human trafficking cases, said Jeanne Cooney, director of community relations for the office. This was partly due to budget constraints and the changing landscape of criminal activity, she said.
"This is an issue a lot of people in government and law enforcement were well aware of for years, but nobody wanted to discuss for fear of being labeled soft on crime. And we took some criticism from people who believed we should prosecute every crime," she said. "The attorney general's speech today is so important because it will ignite national debate."
On the state level, Minnesota has the nation's lowest incarceration rate, and the prison population has declined the past two years, said Hennepin County Attorney Michael Freeman. His office and many other counties aggressively divert first-time and low-level drug offenders to rehab programs rather than prison, he said.
The cost of incarceration nationwide was $80 billion in 2010, according to the Justice Department. In the 1980s, the Anti-Drug Abuse Act created mandatory minimum sentences for possession of small amounts of crack and powder cocaine. Wold said he wondered why such sentences exist when there are already well-defined sentencing guidelines for judges, and recent Supreme Court rulings have made guidelines less restrictive.
"Mandatory sentences really handcuff judges where I know they would not apply that sentence," he said. "Sentencing reform can go a long way. I think it's about time."
As for whether Holder's policy changes will bring inconsistency in sentencing across U.S. attorneys' offices, Roe said this is already an issue because prosecutors decide whether they will use mandatory minimums or judges allow sentencing enhancements that add years to a prison term.
Keeping more people out of prison and getting them into rehabilitation or a drug court is the most effective solution, said Ramsey County Attorney John Choi. Holder's strategy is thoughtful, and the public wants prosecutors and law enforcement to place a higher priority to achieve the most effective outcome regarding the offender, he said.