Reform Efforts Underway for Low-Level Federal Drug Crimes

by Mary C. Piemonte

Department of Justice courtesy photo of U.S. Deputy Attorney General James Cole

The cost to maintain “the crushing” American prison population is “unsustainable,” and if we don’t find a solution to the federal prison population problem, “public safety is going to suffer,” U.S. Deputy Attorney General James Cole recently told some judges, prosecutors and defense attorneys at the New York State Bar Association annual meeting about the “crisis in the American criminal justice system” on Jan. 30, 2014.

The United States comprises only five percent of the world’s population, but incarcerates almost a quarter of the world’s prisoners.

A greater percentage of the American population are in prison than in any other industrialized country, with “over half of the federal prison population” there for “drug offenses,” Cole stated in his written remarks, located on the U.S. Department of Justice website.

Some of the inmates imprisoned for drug crimes, he said, “are truly dangerous people, who threaten the safety of our communities and need to be taken off the streets for a long time. But others are lower-level drug offenders, many with their own drug abuse issues, who fall into the all-too-common, vicious cycle of drug abuse, crime, incarceration, release – and then the cycle repeats.”

In an attempt to remedy this massive problem, the DOJ has been engaging in conversations with law officials, modifying their federal drug policies, working on an alternatives to incarceration for drug users charged with low-level drug offenses and even proposed new sentencing legislation for certain federal drug crimes, which would also give inmates the ability to petition for commutation of their sentences, including those with life.

Modifying Charging Policies

Cole said the Department of Justice recently took a fresh look at their practices and policies on charging decisions and sentencing recommendations. And examined whether their approach to prison terms was appropriately tailored to the four goals of sentencing, which are punishment, protection of the public, deterrence, and rehabilitation.

“We modified our charging policies so that certain low-level, nonviolent drug defendants, with no significant ties to large-scale organizations, gangs, or cartels, will no longer be charged with offenses triggering mandatory minimum sentences.

“Instead, they will be charged with offenses that allow prosecutors and defense counsel to argue for, and judges to impose, sentences better suited to their conduct.

In addition, we reconsidered the use of optional sentencing enhancements for repeat offenders, which can double a defendant’s sentence for certain drug crimes.”

Cole added that under the new policy, “those enhancements are to be used only in those cases warranting the most severe sanctions.”

“By making these changes to our policies, we intend to make smarter use of our limited and costly prison space and reserve the longer sentences for the most serious, high-level or violent drug offenders.”

Federal Bill Proposed to Reform Drug Law and Commute Sentences

Cole said “Common sense legislative reform” is one way to deal with the issue of sentencing people convicted of certain federal drug crimes.

He said earlier in the month, U.S. Attorney General Eric Holder “urged Congress to pass the bipartisan Smarter Sentencing Act introduced by Senators Dick Durbin and Mike Lee – which would give judges more discretion in determining appropriate sentences for people convicted of certain federal drug crimes.”

Last December, U.S. President Barack Obama commuted the sentences of 8 men and women who were sentenced under severe—and out of date—mandatory minimum sentencing laws. They were convicted of crack cocaine offenses, each of them had served more than 15 years in prison at the time of release, but most were serving life sentences.

Cole said “This bill would also provide a new mechanism for some individuals – who were sentenced under outdated laws and guidelines – to petition judges for sentencing reductions that are consistent with the Fair Sentencing Act.

“Such legislation could not only increase confidence in our criminal justice system, but also save our country billions of dollars in prison costs while keeping us safe.”

Cole added that there is more to be done, “because there are there are more low-level, non-violent drug offenders who remain in prison, and who would likely have received a substantially lower sentence if convicted of precisely the same offenses today.”

“This is not fair, and it harms our criminal justice system” he said.

According to Cole, the federal Bureau of Prisons will begin advising inmates of the opportunity to apply for sentence commutation, provide information about the process and about bar associations who are willing and able to help them with their petitions.

A qualified inmate petitioning sentence commutation, who would potentially be eligible for consideration, would be a “non-violent, low-level drug offenders who were not leaders of—nor had any significant ties to—large-scale organizations, gangs, or cartels, who has a clean record in prison, does not present a threat to public safety, and who is facing a life or near-life sentence that is excessive under current law.”

Cole said the commutations were not pardons, nor exonerations, nor were they being given for “forgiveness” reasons.

“Rather, as the President said, they were an “important step toward restoring fundamental ideals of justice and fairness.” He noted that “many of [these individuals] would have already served their time and paid their debt to society” had they been sentenced under current law.

Cole added that he didn’t want to “to minimize the impact of their behavior” because of the consideration of sentence reductions for those who, at an earlier time, “encountered severe and inflexible sentencing laws.”

“Now, let there be no mistake, even the low-level drug offenders cause harm to people through their criminal actions and many need to be incarcerated … However, some of them, because of the operation of sentencing laws on the books at the time, received life sentences, or the equivalent of a life sentence, for limited conduct. For our criminal justice system to be effective, it needs to not only be fair; but it also must be perceived as being fair.

“These older, stringent punishments, that are out of line with sentences imposed under today’s laws, erode people’ s confidence in our criminal justice system.

One Alternative to incarceration for Drug Users

Additionally, Cole said the Department of Justice has “encouraged the use of drug courts as an alternative to incarceration for people who can benefit from being given a chance to escape the grip of drugs.”

“By treating drug addiction as a disease instead of a crime,” there is “a better outcome for the defendant, the criminal justice system, and society,” he said.

Read Cole’s full remarks here:

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