A few months ago, Attorney General Eric Holder announced that he would direct United States Attorneys around the country to avoid charging certain low-level and non-violent drug offenders with crimes that carry mandatory minimums.
The idea behind the policy change is to direct scarce resources to where they can be most effective. And punishing small-time drug users with the full weight of the federal government’s resources seems like, well, overkill.
The announcement made the national news. But defense attorneys, being a skeptical lot, have been… skeptical. And for good reason.
The basic problem with the federal system is that the broad discretion to charge, coupled with the very heavy statutory penalties, coupled with an inability to strike definitive plea agreements with an addition pinch of “relevant conduct” mean that defendants in federal courts face a very tough road.
Encouraging AUSAs to not “over charge” is a nice sentiment, but does little for an actual defendant who might be accused of being in a larger drug conspiracy – as is often the case – and may have an otherwise spotless or minimal criminal record.
As it turns out, it’s not uncommon for people to be swept up in drug conspiracies where their conduct may be relatively minor and entirely non-violent. As a prosecutorial tool, AUSA are likely to charge even minor participants with harsh crimes related to the entire drug conspiracy because AUSAs know as well as anyone in the system that a heavy hammer encourages cooperation, also known as “snitching.”
In this real-world scenario, Attorney General Holder’s direction about not over-charging falls by the wayside.
The only real way to resolve these issues is to move toward a more sane drug policy in this country which focuses on treatment, on legalizing the sale and regulation of drugs to ensure their relative safety, and thereby getting the sale and distribution of these drugs out of the hands of violent drug cartels such as La Familia, the Zetas, and the Gulf Cartel.