Yesterday James Joyner wrote about Eric Holder’s announcement of planned changes to the way the Justice Department prosecutes drug cases. One thing the post didn’t delve into were the specifics of the change. As reported in The Guardian, Holder’s strategy is to “instruct [Federal] prosecutors to side-step federal sentencing rules by not recording the amount of drugs found on non-violent dealers not associated with larger gangs or cartels.”
Mandatory minimum sentencing guidelines, based on the amount of drugs carried versus the specific crime involved, were introduced during the 1980’s. Such sentencing guidelines remove all flexibility from the system and remove judges ability to give lesser sentences for low level crimes involving drugs. The net result of the guidelines, according to many scholars and analysts, is that federal prisons have been filled with low level criminals serving long sentences based not on the crimes they committed, but the amount of drugs on them at the time of their arrest.
Holder’s answer to this is to provide prosecutors with the discretion to, in certain cases, file charges without including the amount of drugs in question. Failing to provide that information means that upon conviction, the Judge will not be legally bound to the guidelines as they are triggered by the quantity of drugs rather than the crime that was committed.
In his post, James raised excellent points about how this can be seen as an end run around Congress. And to the degree that this order represents a step away from pursuing the maximium possible sentence in every case, he is correct, if we accept that Congress’s goal in passing the legislation was that any and every criminal caught with X amount of drugs was subject to the law.
That said, is that they only way to interpret the law?
As Ohio State University law professor Douglas Berman pointed out on this morning’s Morning Edition on NPR, Attorney Generals regularly announce these sort of general interpretive guidelines for federal prosecutors. Professor Berman notes that as recently as a decade ago, Attorney General John Ashcroft issued guidelines to federal prosecutors to always charge the most serious provable offense in drug cases.
If an Attorney General can remove proprietorial discretion through such an order (in the case of Ashcroft), it seems logical that they also have the power to return it (in the case of Holder). After all, even after the change that Holder is calling for take place, prosecutors will still charge plaintiffs with the same crimes they have been. The only change is that, in cases that qualify, the amount of drugs being carried at the time will not be included in the charge. Chances are, that there will be a significant amount of prosecutorial discretion in deciding which cases qualify.
