By Teresa Welsh |
If you think it is a bad idea to pursue even a worthy goal by lawless and impractical means, then you ought to be against the prosecution policy announced by Attorney General Eric Holder on Monday.
In response to complaints that some judges were imposing overly lenient sentences, Congress enacted laws, including statutes relating to narcotics, that impose mandatory minimum sentences. If a defendant in a drug case is found to be trafficking in more than a certain quantity of specified kinds of drugs, or the defendant has more than a specified number and type of past convictions, then the judge must sentence him to at least a minimum specified sentence – 5, 10, sometimes 20 years. The judge has no choice in the matter.
In 1994, in response to complaints that such a sentencing scheme resulted in some inappropriately long sentences for relatively minor offenders, Congress enacted and President Clinton signed a remedial law providing that if the offense did not result in death or serious injury, and if the defendant did not have more than one criminal history point by the standards set in the Sentencing Guidelines, did not use violence or a firearm, was not an organizer or supervisor of others in the criminal scheme, and before sentencing had truthfully provided all information about the crime available to him, the judge need not impose what would otherwise have been the mandatory minimum but could use the normal procedure under the Sentencing Guidelines.
On Monday, the Attorney General announced that the decision as to whether a crime triggering a mandatory minimum sentence had been committed henceforth would be made by the prosecutor, under standards different from those provided by Congress in the remedial law that it passed and the president signed. Prosecutors are instructed that they should consider the following factors in deciding whether to specify in the charge against the defendant a quantity of drugs that would trigger the mandatory minimum: whether the defendant was not an organizer or leader of the criminal scheme, whether the defendant used or threatened violence, whether the defendant has a significant criminal history (with three criminal history points provided as a non-binding benchmark), and whether the defendant has "significant ties to large-scale drug trafficking organizations, gangs or cartels."
Similar instructions to prosecutors apply when determining whether to charge a defendant's prior convictions in such a way as to trigger severe sanctions that are now mandatory under the law.
Further, prosecutors are instructed that at the time of sentence, they should consider whether a sentence below what would otherwise be the applicable Guidelines range is appropriate, and whether the defendant has provided timely, truthful and complete information about the background of the crime.
Note that the decision about whether the mandatory minimum will apply is taken out of the hands of the court, and that full disclosure by the defendant of the background of the crime – such that, for example, others might be prosecuted – is only one factor that could influence what recommendation a prosecutor makes at sentence, not the prerequisite for avoiding the mandatory minimum sentence. This diminishes sharply a defendant's incentive to cooperate with prosecutors.
This system simply sweeps aside the remedy enacted by Congress in favor of a more lenient remedy preferred by the attorney general. However, it is Congress that passes the laws, and the attorney general who is supposed to enforce them. If the laws are unsuitable, the remedy lies in getting new laws, not in disregarding existing ones.
Further, the standards set for prosecutors are loose – "significant" criminal history, "significant" ties to criminal organizations or gangs and the like. Standards like that, employed in each of the 93 separate districts across the country, are nearly impossible to enforce in a uniform fashion.
If, as the attorney general says, we are diminishing respect for law by imprisoning too many people for too long, would that respect be restored by disregarding the law or by changing it? The answer seems obvious.
About Michael B. Mukasey Former Attorney General of the United States