Judges to get more leeway in drug cases

  • Article by: RANDY FURST , Star Tribune
  • Updated: May 11, 2014 - 6:13 AM

A new approach means low-level offenders are less likely to face “mandatory minimum” sentences.

Attorney General Eric Holder.
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U.S. Attorney General Eric Holder.

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Some nonviolent drug offenders in Minnesota are poised to catch a break from a significant change in the way the nation handles drug crimes.

Responding to a call for reform by U.S. Attorney General Eric Holder, new Minnesota U.S. Attorney Andy Luger has instructed the assistant attorneys in his office to examine all of their incoming drug cases. The result likely will be that fewer defendants will face the long “mandatory minimum” terms that are clogging federal prisons with nonviolent offenders.

“This new approach gives us the ability to look at each individual drug case and make a charging decision that we believe is in the interest of justice,” Luger said. “It leads to very healthy discussion among prosecutors about what justice requires.”

Defense attorneys welcome the change. Katherian Roe, chief federal public defender in Minnesota, said the new policy will put more sentencing decisions in the hands of the judge “where it is supposed to be in the first place.” She called it “a great development.”

For years, federal prosecutors have charged most drug offenders under a law that carried a mandatory minimum of five or 10 years in federal prison, regardless of their role in a drug crime. Low-level couriers were frequently treated like violent members of cartels. The office has charged about 200 people with drug crimes in 2012 and 2013.

Now prosecutors have been told to determine if a defendant should be charged under different laws that allow a judge to impose a lighter sentence.

The policy change is driven by Holder, who said last August that mandatory minimum terms “have resulted in unduly harsh sentences and perceived or actual disparities.”

He said long sentences for low-level, nonviolent drug crimes don’t promote public safety, deterrence or rehabilitation.

“Moreover, rising prison costs have resulted in reduced spending on criminal justice initiatives, including spending on law enforcement agents, prosecutors and prevention and intervention programs.”

Support ‘in principle’

One law enforcement advocate applauds the change.

State Rep. Tony Cornish, R-Vernon Center, said he supported “in principle” the new federal approach. “The public wants sex offenders and murderers locked up,” he said, with more attention paid to prevention and education for low-level drug offenders.

However, Hennepin County Sheriff Rich Stanek said he hopes the “totality” of a defendant’s criminal record, including previous acts of violence, will be considered by federal prosecutors even if their latest offense is nonviolent.

“It speaks to their character, their propensity for criminal violence,” he said.

Luger said the importance of the Smart on Crime initiative, as the Justice Department calls it, was underscored at a March conference in Washington, D.C., of all U.S. attorneys. In addition to hearing speeches by Holder and Deputy Attorney General James M. Cole, attorneys went to the White House where they were addressed by President Obama, Luger said.

“He said he wanted us to know how important this Smart on Crime initiative was to him,” Luger said.

What’s the difference?

Luger declined to say how many times his office has issued charges without the mandatory minimums. None of the cases has reached the sentencing stage, so it would be inappropriate to comment on them, he said.

However, Roe cited the May 1 sentencing of Travis Sentell Peeler, who was charged, along with seven others, with possession with intent to distribute cocaine and crack. He faced a 20-year sentence because a prosecutor submitted a document stating he was a repeat offender. That would double the 10-year minimum.

Roe said Peeler was accused of delivering drugs and had a very limited role, so with the encouragement of public defender Manny Atwal, the prosecutor withdrew the document, thereby reducing the minimum sentence to 10 years. That is the sentence Peeler received from Judge Richard Kyle.

“I don’t think it could have happened before the [Holder] memorandum,” said defense lawyer Dan Scott, who represented another client in the case.

Luger said that the new approach reminded him of his days as an assistant U.S. attorney in New York City in the late 1980s and early 1990s, prosecuting people who had swallowed condoms filled with heroin or cocaine to get past customs inspectors. Often those defendants had no criminal records, yet they got five- and 10-year prison sentences, he said.

“I wondered at the time if that was the right approach,” he said.

“No one was condoning what they did,” he said. However, he added, “None of them had firearms, and no one had [criminal] records.”

Mandatory minimum sentences are being widely debated. Michael Ponsor, a senior U.S. district judge, wrote an article in February in the Wall Street Journal, lamenting the long prison terms he was required to give low-level drug couriers.

“Today we imprison more of our people than any country in the world,” he wrote. “The U.S. now houses 5 percent of the world’s population and 25 percent of its prisoners.”

In January, U.S. Sens. Amy Klobuchar and Al Franken, Minnesota Democrats, joined a bipartisan group on the Senate Judiciary Committee whose members voted 13-5 to cut mandatory minimum sentences in half for some drug offenses.

Klobuchar, along with two other senators, voted to report the bill out of committee but said they’d like to work with law enforcement on changes to the proposal before it goes to the full Senate, said a spokesperson for Klobuchar.

Luger disclosed last week that the Justice Department has picked five federal jurisdictions, including Minnesota, to set up re-entry training programs for federal prisoners.

“The probation office, the U.S. attorney, the federal defenders and judges will work together to develop a federal re-entry program in Minnesota,” Luger said. The aim is to reduce recidivism by helping released prisoners with housing, jobs and other support.

 

Randy Furst • 612-673-4224

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Attorney General Eric Holder.