U.S. Attorney General Jeff Sessions’ recent memo to federal prosecutors that instructs them to charge and pursue mandatory minimum sentences whenever possible — including for all drug cases — generated a wave of backlash among bipartisan criminal justice reform groups, some state and local prosecutors, and the defense bar.

In San Diego, defense attorneys said the new charging and sentencing policy could mean fewer plea deals and unwarranted harsher sentences in human smuggling and drug cases common to the border region.

It’s a position that is not shared by the National Association of Assistant United States Attorneys, a labor union representing about 1,500 of the 5,700 federal prosecutors in the country. The association, which called Sessions “a man of unquestionable integrity and unparalleled experience” when it endorsed him for attorney general, lauded the renewed focus on mandatory minimum penalties.

In a conference call Thursday with several news outlets, including The San Diego Union-Tribune, the association’s leadership sought to correct what they said were inaccuracies in reporting on the topic and to inject a line prosecutor’s voice into the debate.

In 2013, then-Attorney General Eric Holder instructed prosecutors to not seek mandatory minimum sentences against low-level drug offenders who were not violent, not major recidivists and not leaders of large criminal organizations.

Sessions’ May 10 memo revokes that, a move the association’s leadership applauded as a return to upholding the will of Congress, which enacted mandatory minimum sentencing laws.

“We’ve simply gone back to a policy and practice that’s been effective for the past 30 years,” said association President Lawrence Leiser, an assistant U.S. attorney in Virginia.

He said mandatory minimum sentences helped cut the high crime rates of the 1980s and 1990s, and lenient policies like Holder’s put that effort in jeopardy.

“Unfortunately we’re beginning to see crime rates rise in the country at the same time prison populations are starting to decline,” Leiser said, echoing Session’s comments on the topic. “I don’t believe the increase in crime rate is a coincidence.”

That goes to the core of the criminal justice reform debate. What makes communities safer — incarceration or rehabilitation of criminals?

Opponents of minimum mandatory laws say they cast an unfair dragnet and limit the discretion of prosecutors and judges.

Association Treasurer Steve Wasserman said the law already takes those concerns into account and pointed to “safety valve” exceptions that allow certain offenders — typically low-level, first-time, nonviolent drug offenses not involving guns — to avoid mandatory minimum sentences. Those who cooperate with the government can also avoid such sentences or petition to have them reduced at a later time.

According to the U.S. Sentencing Commission, in fiscal 2015 nearly 40 percent of the offenders convicted of a mandatory minimum sentence were relieved of that penalty for various reasons. Thirteen percent of all federal offenders received a mandatory minimum sentence.

Wasserman emphasized that rhetoric about unduly harsh penalties for low-level drug offenders isn’t as relevant at the federal level, where prosecutions focus on large-scale operations, the big fish. Low-level drug offenders are often tried in state court, he said.

“We are typically not prosecuting the guy you think of standing on the corner with a bag of marijuana,” Wasserman said, adding that a mandatory minimum sentence is triggered by the amount and type of drugs involved.

In San Diego, gang and cartel members are frequent targets of prosecution. Another common drug offender is the courier, someone who is often law-abiding or small-time but recruited by a drug-trafficking organization to drive a load of narcotics across the border for a few thousand dollars. They are often desperate for the money, persuaded by someone they trust or threatened.

Under Sessions, the courier might be treated the same as the cartel member when it comes to mandatory minimums. Should they?

Wasserman also refuted the notion that more mandatory minimum charges could mean fewer plea deals and more trials — putting more pressure on court resources.

“It has not been my experience that the charging of mandatory minimums … prior to the Holder memo resulted in more people going to trial,” he said.

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(c)2017 The San Diego Union-Tribune

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