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Officials say prosecutors are already following the strategies suggested by the U.S. attorney general.
Saturday, August 24, 2013
U.S. Attorney General Eric Holder recently directed the nation’s more than 5,000 federal prosecutors to cut nonviolent, low-level drug offenders without extensive records a break from mandatory minimum sentences, calling the use of prison-term mandates in such cases “draconian.”
But in the view of the top regional prosecutor, no major change is needed in this part of the country. Drug offenders in Western Virginia aren’t being subjected to the kind of harsh measures that concern Holder and haven’t been for years, according to Timothy Heaphy, U.S. attorney for the Western District of Virginia.
The district’s chief judge said he agreed, while two local defense attorneys said mandatory minimums for drug crimes have failed as a judicial strategy to reduce drug activity. They hope Holder’s raising the issue will prod Congress to shorten or eliminate them.
In an Aug. 12 speech, Holder gave the American Bar Association a bleak assessment of mandatory minimum penalties imposed for drug crimes.
“Too many Americans go to too many prisons for far too long, and for no truly good law enforcement reason,” Holder said, calling the rate of growth of the federal prison population “astonishing” and system costs “a significant economic burden.”
Almost half of the 219,000 federal inmates today were sentenced for drug-related crimes, he said.
Holder said mandatory minimum prison terms on the books — which run from five years to life in prison — lock up too many offenders for “unfairly long” periods. That breeds disrespect for the system, he said. Applied “indiscriminately,” the minimums actually hinder public safety and are especially hard on poor and minority communities as they imprison members of those communities for long spells, Holder said.
In addition to urging Congress to reform sentencing laws and calling for more work to rid the system of disparities unfair to minorities, Holder ordered prosecutors to start doing things a little differently.
Holder announced federal prosecutors “will no longer” file charges that trigger “draconian” mandatory prison terms when the defendant is a nonviolent, low-level drug offender with no significant criminal history or ties to large-scale gangs or cartels.
Nationally, two-thirds of drug convictions carried a minimum mandatory sentence in 2010, the last time the issue was studied by the U.S. Sentencing Commission. Of those, 45 percent of defendants actually received a mandatory prison term. More than 55 percent qualified for a break because they were deemed a low-level offender or helped law enforcement detect and deter other crime. A breakdown for the Western Virginia district of U.S. District Court wasn’t available.
Holder’s points received a big thumbs up from defense attorneys.
“I think the attorney general’s proposal is welcomed by defense attorneys nationwide and I think it will go a long way toward reducing the warehousing of people in the federal system, and I think a lot of that is taking place now,” said Larry Shelton, the federal public defender in Roanoke.
The so-called war on drugs that began in the late 1980s and ushered in a whole set of mandatory minimum penalties has been “a monumental failure,” Shelton said. Shelton counts himself as among those who want to end mandatory minimums that dictate what sentences judges must impose. Let judges fashion drug sentences suited to each case, he said.
The defense bar isn’t against penalizing drug kingpins severely. But what is the most appropriate consequence for low-level offenders?
Holder’s declarations earlier this month “are a good thing to start the debate, start the discussion about what we’re doing as a legal system and as a society about … not the people that are running drug cartels but the people that are more street-level or smaller-quantity folks. What do you do with them?” said Roanoke criminal defense attorney David Damico.
As it processes low-level drug offenders today, the judicial system “can be ruthlessly unfair to a given person,” he said, declining to cite specific examples.
Heaphy said he for the most part has operated as Holder requested since Heaphy took office in October 2009.
Heaphy said he will fine-tune local charging practices but expects only a small decrease in the imposition of mandatory minimums prison terms.
“This is an evolutional step, not a new thing for us,” Heaphy said.
Glen Conrad, the chief federal judge of the Western District of Virginia, said he agrees with Heaphy’s description.
“This United States Attorney’s Office has been fair in the way it charges individuals,” Conrad said.
Conrad said low-level drug offenders are not receiving mandatory minimum sentences in this district.
Heaphy is responsible for bringing federal criminal charges in the Western District of Virginia, in which 47 percent of criminal cases were drug-related last year, well above the national average of 30 percent, according to the U.S. Sentencing Commission.
The average drug-related sentence was 91 months, versus a national average of 72 months, a commission report said.
Asked for a reason for the variance, Heaphy said he has focused on major drug cases.
“We probably more than some places around the country have already changed our approach to drug charging,” he said. “We have pivoted toward charging only folks that are more sophisticated.”
The rest are prosecuted in the state courts.
That said, he plans to further tighten up practices. Prosecutors will bring a charge punishable by a mandatory minimum only in cases aggravated by one or more factors such as use of violence, use of juveniles, selling near a school or connection to a gang, cartel or other sophisticated enterprise. They might also do that in cases where the defendant has an extensive criminal record and is facing a new charge, he said, citing Holder’s directive.
The background, Heaphy said, is that John Ashcroft, attorney general under President George W. Bush, required federal prosecutors to charge defendants or accept a plea of guilty from them to the most serious, readily provable offense they could. Presented with evidence of the type of drug involvement that by law triggers a mandatory minimum prison term on conviction, prosecutors had to pursue that outcome.
“That was department policy,” Heaphy said.
Holder, who was appointed by President Barack Obama and had been in office six months when Heaphy became the federal prosecutor in Roanoke, changed policy. He told district prosecutors they no longer needed to subscribe to the most-serious charge doctrine, Heaphy said. They were permitted to pursue a less-serious conviction if appropriate, he said.
“We have tried hard to bring charges and resolve cases to get sentences that seemed to make sense, that are proportional” to the conduct of the accused, Heaphy said.
Heaphy and the assistant prosecutors in his office still seek mandatory minimum sentences, “but not just because we can, but because they make sense in a particular case.”
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