Eric Holder and Trickle Down Criminal Justice

Attorney-General-Eric-Holder

Here's hoping the Attorney General's new policy toward mandatory minimums not only changes the landscape in federal court but also eventually state courts. If you are not already aware, on Monday the Attorney General for the United States, Eric Holder, announced a new policy in the federal prosecution of drug crimes. The Attorney General is basically the head prosecutor for the federal government. This policy states that prosecutors in the various U.S. Attorney offices throughout the country may not state the quantity of drugs in the indictment if the accused meets certain criteria. The point of this policy is to reduce the use of mandatory minimum sentences in federal cases and reduce the crushing burden of skyrocketing prison populations both in terms of the economic costs and the social costs.

Back in the 1980s and 1990s, America viewed itself as being in the middle of a "crime wave." The reaction by lawmakers was to curb what they viewed as rampant drug dealing by imposing strict mandatory minimums. The mandatory minimums basically took all sentencing power away from the judge and gave it to the prosecutor. By imposing this policy, Mr. Holder is using his power to try and change the way these cases are prosecuted.

Mr. Holder gave four criteria for cases where prosecutors are not supposed to try for a mandatory minimum: the accused's conduct did not involve violence, the use of a weapon or sales to minors; they are not leaders of a criminal organization; they have no significant ties to large-scale gangs or cartels; and they have no significant criminal history. Basically, lower level offenders, with little or no criminal history, and no accusations of violence, will benefit from the new policy, in theory.

Interestingly, if you're a fan of the new Netflix show "Orange is the New Black," this new policy likely would have benefited the title character Piper Chapman. In the pilot episode, Piper tells her counselor that she took the plea deal because of the mandatory minimums that applied to her case. She would qualify since she was a low level offender, not a leader, no criminal history, and she did nothing violent. Who knows, maybe the show would have never existed if this policy were in place at the time of her prosecution? The problem is that for this policy to work it requires federal prosecutors to follow the Attorney General's instructions and it says nothing about the use of the high federal sentencing guidelines, which would still apply even without the mandatory minimums. See, the Attorney General's statement does not have the force of law; it is not a bill passed by the legislature, but basically a directive to his employees. It would likely be wise for them to follow it, but there is nothing stopping the next attorney general from changing course and bringing the mandatory minimums back.

Also, since Mr. Holder is a federal prosecutor and not a state district attorney his policy has no direct impact on the prosecution of state drug cases. We can hope that as the nation's top prosecutor, Mr. Holder has wide influence in criminal justice policy. Maybe the various state, county, and city prosecutors in the country will change their policy toward mandatory minimums too. It's the easiest way for prosecutors to force a plea by agreeing to forgo the mandatory minimum in exchange for a guilty. Taking this tool away from the prosecutor puts defendants in a better position. We can only hope that this policy sticks around and trickles down. It's full effect remains to be seen.

 

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