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Federal Drug Crimes Get Different Treatment by U.S. Attorneys Per Eric Holder – What Does This Mean for Texas Defendants?

Federal drug crimes are going to be treated differently by federal prosecutors; here’s why and what it means to people in Dallas and Fort Worth and the rest of Texas that face drug arrests based on federal law.

Federal Drug Crimes Punishment Set Out if Federal Sentencing Guidelines 

Federal crimes that result in convictions force federal defendants to face being sentenced under a structured scheme known as the “Federal Sentencing Guidelines.” These guidelines were created by the federal government to try and insure that there was fairness in federal cases that were prosecuted in different parts of the country; in other words, to insure that someone sentenced in Alaska would receive a similar punishment to someone convicted of the same crime in Alabama or Hawaii or Iowa.

(For details on how Federal Sentencing Guidelines work, visit our site page discussing Federal Sentencing Guidelines as well as our FAQ section.)

The 2000+ page Federal Sentencing Guidelines Manual combines offense levels (there are over 40); criminal history categories (there are six); and sentencing zones (there are four). Federal Prison Sentences go up or down from the guidelines according to stated factors for increases or reductions in time served. Other federal laws as well as the precedent of past federal court opinions on sentencing also come into play here.

It’s complicated.

Defending at Federal Sentencing Hearings 

Experienced federal criminal defense lawyers can successfully argue to federal judges (see Michael Lowe’s Case Results examples) that the particular case before the bench warrants a “departure” from the Sentencing Guidelines – reducing the sentence — on a wide range of bases.

These arguments are made at sentencing hearings that are scheduled weeks or months after the person has been convicted of the drug crime.   (For example,  read about Mr. Lowe’s successful defense at a August 2012 federal sentencing hearing here in Texas.)

What Holder is doing is changing things long before the defense attorney argues before the federal judge at the sentencing hearing; Holder is telling federal prosecutors that how drug crimes will be handled from the get-go in their offices is going to be different.   Which impacts what everything from what the initial charge will be to what may be discussed between defense counsel and the federal prosecutor in plea negotiations long before any formal appearance for argument before a federal judge at a sentencing hearing.

Eric Holder Announces Change in Justice Department Policy in Federal Drug Crime Prosecution

This week, during a speech given to the American Bar Association at its Annual Delegates Meeting, the Attorney General of the United States, Eric Holder, announced that he’s changing internal policy within the Department of Justice regarding “low-level, nonviolent” drug offense sentences.

This is a big deal for federal drug convictions because Holder is changing internal D.O.J. policy in federal crimes, so people arrested for federal drug crimes will not face mandatory minimum prison sentencing demands by the federal government. Now, there’s more discretionary power for each regional United States Attorney’s Office — like the U.S. Attorney’s Office for the Northern District of Texas, headed by United States Attorney Sarah R. Saldaña which, according to its website, “….serves more than seven million residents in 100 counties that encompass nearly 96,000 square miles in northern and western Texas.

Why is Eric Holder announcing this change in policy?

It’s not that the federal government is being spurred to take this action because many drug defendants might be served better in dealing with addictions or bad habits in ways other than prison time – no, this change in policy appears to be the result of more practical concerns.

It’s being reported that federal prisons simply have too many people behind bars: that they are 40% over capacity and close to 50% of federal inmates are in prison for drug-related offenses. 

Holder’s Change in Policy Does Not Impact Federal Judges –  So Congress is Working to Give Judges More Discretion

This change in attitude toward drug crime sentences impacts only federal arrests and federal prosecutions by U.S. Attorney’s Offices. Holder is telling his staff of federal prosecutors that they can charge low-level, non-violent drug crimes as “offenses for which the accompanying sentences are better suited to their individual conduct.”

That’s going to change how pleas are negotiated between federal drug crime defense attorneys and federal prosecutors; however, Holder cannot order federal judges to change their ways — and federal judges, after all, are the ones that actually do the sentencing.

Enter the U.S. Congress. Right now, there is a bipartisan bill proceeding through the Senate that will dovetail Holder’s new discretionary stance in changed federal law that will give federal criminal judges more leeway in the sentencing in non-violent drug cases that come before them.

Excerpts From Holder’s Speech on Monday

To read the entire speech given by Eric Holder and all the details on this big change in federal drug crime policy, go here to read the full text at the DOJ web site; excerpts from that speech are shown below:

“… At the beginning of this year, I launched a targeted Justice Department review of the federal system – to identify obstacles, inefficiencies, and inequities, and to address ineffective policies. Today, I am pleased to announce the results of this review …. 

“[F]ederal prosecutors cannot – and should not – bring every case or charge every defendant who stands accused of violating federal law. Some issues are best handled at the state or local level. And that’s why I have today directed the United States Attorney community to develop specific, locally-tailored guidelines – consistent with our national priorities – for determining when federal charges should be filed, and when they should not. 

“…[A]lthough incarceration has a significant role to play in our justice system – widespread incarceration at the federal, state, and local levels is both ineffective and unsustainable. It imposes a significant economic burden – totaling $80 billion in 2010 alone – and it comes with human and moral costs that are impossible to calculate….

 “As a nation, we are coldly efficient in our incarceration efforts. While the entire U.S. population has increased by about a third since 1980, the federal prison population has grown at an astonishing rate – by almost 800 percent. It’s still growing – despite the fact that federal prisons are operating at nearly 40 percent above capacity….

 “We will start by fundamentally rethinking the notion of mandatory minimum sentences for drug-related crimes. Some statutes that mandate inflexible sentences – regardless of the individual conduct at issue in a particular case – reduce the discretion available to prosecutors, judges, and juries. Because they oftentimes generate unfairly long sentences, they breed disrespect for the system. When applied indiscriminately, they do not serve public safety. They – and some of the enforcement priorities we have set – have had a destabilizing effect on particular communities, largely poor and of color. And, applied inappropriately, they are ultimately counterproductive. …

 “This is why I have today mandated a modification of the Justice Department’s charging policies so that certain low-level, nonviolent drug offenders who have no ties to large-scale organizations, gangs, or cartels will no longer be charged with offenses that impose draconian mandatory minimum sentences. They now will be charged with offenses for which the accompanying sentences are better suited to their individual conduct, rather than excessive prison terms more appropriate for violent criminals or drug kingpins…..”


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