Department of Justice Policy Regarding §851 Enhancements and Mandatory Minimum Sentences
In an effort to reduce federal prison overcrowding and to address flaws in federal sentencing structure, the Obama administration, via Attorney General Eric Holder has announced drastic changes in the federal government’s policies toward criminal defendants. In light of the decision issued in Alleyne v. United States, 133 S. Ct. 2151; 186 L. Ed. 2d 314 (June 17, 2013), federal prosecutors have been instructed by the Attorney General to seek increased statutory mandatory minimum sentences against “serious, high-level, or violent drug traffickers.” Such increased sentences are not to be sought against certain “nonviolent low-level drug offenders.” Prosecutors have been advised to reserve the enhanced sentences for recidivists under 21 U.S.C. § 851 for serious offenders, as such sentences for low-level offenders “do not promote public safety, deterrence, or rehabilitation” and represent an increasing strain on the federal criminal justice budget.
Specifically, if individuals charged with being involved with controlled substances under Title 21 of the United States Code meet the following criteria, prosecutors have been instructed not to charge the individuals with increased drug types and quantities that would increase statutory minimum sentences:
– The individuals’s relevant conduct does not involve the use of violence, the threat of use of violence, the possession of a firearm, the trafficking of drugs to minors, or death or serious bodily injury to any person;
– The individuals is not an organizer, leader, manager, or supervisor in a criminal organization;
– The individual does not have significant ties to a large-scale drug trafficking organization or gang;
– The individual does not have a significant criminal history, with fewer then three criminal history points being a rough guide for this measure.
The government has also stated that it would seek to expand the compassionate release program by revising eligibility criteria to include “elderly inmates who did not commit violent crimes and who have served significant portions of their sentences.”
Importantly, these policies are not changes in federal law. Only with the enactment of legislation by Congress codifying these policy changes will these policies become law. The Attorney General has stated that the Department of Justice would aid Congress in this pursuit. Specifically, the Attorney General mentioned two bills that the Obama administration hoped to “refine and advance.” One is the Justice Safety Valve Act (S. 619). The bill would give federal courts discretion to depart below a statutory minimum sentence when circumstances warrant.
The other bill is S. 1410, the Smart Sentencing Act. This legislation would reduce mandatory minimum sentences for drug crimes, expand slightly the existing drug safety valve, and apply retroactively the Fair Sentencing Act of 2010, which reduced the crack-powder cocaine sentencing disparity.
NLPA will continue to monitor the government’s efforts at reforming the criminal justice system. As of yet, the above changes in policy do not have the effect of law. However, with continued argument in the federal courts for such change, as has been advocated by NLPA since its founding more than two decades ago, federal courts and lawmakers will be forced to heed the clarion call for justice and fairness in the criminal justice system.
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