Pubdate: Sun, 25 Aug 2013
Source: Dallas Morning News (TX)
Copyright: 2013 The Dallas Morning News, Inc.
Contact: http://www.dallasnews.com/opinion/send-a-letter/
Website: http://www.dallasnews.com/
Details: http://www.mapinc.org/media/117
Author: Kimberly Priest Johnson
Note: Kimberly Priest Johnson is the founder of Dallas' Priest 
Johnson PLLC. She and her firm regularly represent individual and 
corporate defendants charged with federal crimes. She previously 
served as a special assistant U.S. attorney prosecuting federal crimes.

HOLDER'S MOVE COULD BACKFIRE

His Go-It-Alone Approach on Drug Sentencing Could Alienate Congress, 
Fears Kimberly Priest Johnson

Jamaican drug gangs were terrorizing South Dallas in the early 1990s 
when laws took effect nationwide requiring a minimum of five years in 
prison for anyone convicted in federal court of possessing an ounce 
or more of crack cocaine or relatively small amounts of other narcotics.

A lot has been said and written since then about how mandatory 
federal drug sentences have caused our prisons to burst at the seams 
and wasted billions in taxpayer dollars, but little has been done.

However, the tables may be turning, based on the recent announcement 
from U.S. Attorney General Eric Holder about new sentencing 
directives for low-level drug offenders charged with crimes that 
aren't gang-related or violent.

Holder's argument, from a distance, seems courageous: "Certain 
low-level, nonviolent drug offenders who have no ties to large-scale 
organizations, gangs or cartels will no longer be charged with 
offenses that impose draconian mandatory minimum sentences," he said 
at the American Bar Association's annual meeting in San Francisco.

As a federal criminal defense attorney and former prosecutor, I find 
it easy to understand Holder's desire to effect change. I have 
personally represented drug addicts who were condemned to prison for 
too many years by these one-size-fits-all sentencing laws and guidelines.

The amount of human potential and productive work that has been lost 
to excessive jail time in the past 19 years is staggering and 
saddening. It's estimated that nearly half of the 219,000 men and 
women in federal prisons today are there because of substance abuse 
issues. A recent report indicates that the United States has the 
highest rate of incarceration of any nation in the world, accounting 
for $80 billion in state and federal costs in 2010 alone.

The problem is that neither Holder nor the government's executive 
branch is authorized to unilaterally change the current system of 
federal drug sentencing. Any effective change must come from the 
legislative branch, which is where the mandatory minimum sentencing 
requirements originated in the first place.

A quick look at Holder's proposal exposes its flimsiness. He suggests 
that prosecutors not disclose the amount of drugs involved in 
investigations. The logic is that if prosecutors don't list the 
amount involved, then a federal conviction won't trigger a mandatory 
minimum sentence. As attorneys well know, evidence is the 
foundational building block of any case. Asking a lawyer to exclude 
available evidence is roughly the equivalent of asking a carpenter to 
forgo the use of nails. It's also an invitation to have the case thrown out.

In any case, attempting to eliminate any mention of quantity is 
nearly impossible. Drug amounts are key elements that prosecutors 
must prove both in trial and at sentencing.

The general concept of prosecutorial discretion is not new. 
Prosecutors are taught early in their careers about this discretion 
and how to utilize it when evaluating the proof of a case and 
deciding whether to use government resources on a prosecution. 
Telling prosecutors that they must use their discretion is less than 
novel and will not bring about change.

Change will happen only when the consensus is that lawmakers erred in 
the 1990s when they decided that locking up drug offenders of all 
stripes would help win the war on drugs.

For the most part, lawmakers got it right by toughening drug laws to 
more effectively incarcerate drug kingpins and other high-level 
dealers through conspiracy laws. The problem is that thousands of 
common drug addicts have been swept into conspiracy cases along with 
them. It might be more effective for legislators to revise conspiracy 
laws rather than trying to revamp all federal drug laws.

One could argue that Holder's move is more symbolic than anything, 
and that at least he's rekindled the debate over federal 
drug-sentencing guidelines and the nation's approach to its drug 
problems. The biggest hurdle is that the political tenor in 
Washington makes it very unlikely that Holder's initiative will move 
both sides toward creating more reasonable legislation.

Instead, the attorney general's move to effect change on his own - in 
essence, snubbing his nose at Congress - may backfire and create 
resistance where it might not have existed before. In that scenario, 
Holder might have caused more harm than good for the tens of 
thousands of Americans who are incarcerated based on little more than 
their drug addictions.
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