Washington • The Obama administration on Thursday expanded its effort to curtail severe penalties for low-level federal drug offenses, ordering prosecutors to refile charges against defendants in pending cases and strip out any references to specific quantities of illicit substances that would trigger mandatory minimum sentencing laws.
The move, announced by Attorney General Eric Holder at a speech before the annual conference of the Congressional Black Caucus, builds on a major policy change he unveiled last month to avoid mandatory minimum sentencing laws in future low-level cases.
“By reserving the most severe prison terms for serious, high-level, or violent drug traffickers or kingpins, we can better enhance public safety,” Holder said. “We can increase our focus on proven strategies for deterrence and rehabilitation. And we can do so while making our expenditures smarter and more productive.”
The policy applies to defendants who meet four criteria: their offense did not involve violence, the use of a weapon, or selling drugs to minors; they are not leaders of a criminal organization; they have no significant ties to large-scale gangs or drug trafficking organizations; and they have no significant criminal histories.
On Thursday, the Justice Department ordered prosecutors to apply that new policy retroactively to defendants who are already in the system but who have not yet been sentenced. It was not immediately clear how many pending federal drug cases would be affected.
In cases where a defendant has been charged but guilt has not yet been adjudicated, for example, prosecutors will be directed to file replacement criminal complaints to eliminate references to specific quantities of drugs that would trigger a mandatory minimum sentence were the defendant to be convicted, according to a three-page Justice Department memorandum from Holder to federal prosecutors.
Holder’s memorandum says that for cases in which a defendant has already been adjudicated guilty but no sentence has yet been imposed, prosecutors have discretion about whether to apply the new policy.
They are “encouraged to apply the policy in guilty-plea cases where legally and practically feasible,” he wrote, but they should generally “not seek relief for a defendant” who chose to go to trial. Portraying the policy as an exercise of prosecutorial discretion, it directs Justice Department officials to fight any motion by a convicted-but-not-yet-sentenced defendant to seek relief without the government’s consent on the basis of the new policy.
The memo also says “prosecutors should not disturb the sentence in a case in which sentence has been imposed.”
The Justice Department policy follows efforts pioneered in states including conservative-leaning Texas and South Carolina to control soaring taxpayer money that is spent to incarcerate huge numbers of nonviolent offenders. Still, those changes were approved by state legislatures. By contrast, the Obama administration is undertaking its move without waiting to see whether Congress will approve legislation to restore greater leeway to judges in sentencing.
Such efforts include the Justice Safety Valve Act. That bill has been co-sponsored in the Senate by Sen. Rand Paul, R-Ky. and Patrick J. Leahy, D-Vt., and in the House by Rep. Robert C. Scott, D-Va., and Rep. Thomas Massie, R-Ky., among others. The Senate Judiciary Committee held a hearing on proposed changes to federal mandatory minimum sentencing on Wednesday.
The wave of change comes as crime has plummeted to the lowest level in four decades, leading to a bipartisan pendulum swing against the tough-on-crime policies imposed a generation ago amid the crack cocaine epidemic. Those policies resulted in an 800 percent increase in the number of prisoners in the United States, at a time when the national population grew by only a third.
Holder has repeatedly criticized the moral impact of the nation’s high incarceration rate, emphasizing that while the United States has only 5 percent of the world’s population, it has 25 percent of its prisoners.