Attorney General Sessions Mandates Tougher Federal Drug Prosecutions

 In Criminal

In the last several years, the Department of Justice has taken a more measured approach in its handling of drug trafficking cases. Specifically, prosecutors were given more discretion to charge drug offenders with offenses that do not carry minimum sentences. However, Attorney General Jeff Sessions has reversed course.

Tougher Federal Drug Prosecutions

Attorney General Sessions reintroduced the policy articulated under Attorney General John Ashcroft, which states that prosecutors should charge “the most serious, readily provable” charges possible, even when it comes to low-level drug offenders. See Ashcroft’s memo to United States Attorneys.

The reintroduction of this policy is a departure from President Obama’s approach, stated by Attorney General Eric Holder, where prosecutors were given leeway to charge such offenders under less draconian statutes that do not carry a mandatory minimum sentence.

Mandatory Minimums in Federal Drug Cases

Simply looking at the policies of each regime does not offer much context to understand the ramifications of each approach. Instead, each method is given real meaning when it is put under the framework of the three most common penalty ranges used in federal drug charges. Examining each of these reveals that two of the three prevalent penalty ranges involve a mandatory minimum sentence.

It is also important to understand that the three ranges are established via drug quantity. That is, the amount of drugs alleged to be involved in the offense dictates which of the three ranges may be applied. However, the reality is that most federal drug cases could qualify under any of the three ranges. Since the Government controls which charge will be brought, it has immense discretion as to which range to seek.

The three ranges are as follows:

  • 21 USC 841(b)(1)(A) – 10 years to life in prison.

This statute applies to a person who manufactures or distributes, or as in the case of a conspiracy charge, agrees to distribute, 50 grams of pure meth or 500 grams of a substance containing meth or 5 kilograms of a substance containing cocaine or 1 kilogram of a substance containing heroin.

  • 21 USC 841(b)(1)(b) – 5 years to 40 years in prison.

This statute applies to a person who manufactures or distributes, or, as in the case of a conspiracy charge, agrees to distribute, 5 grams of pure meth or 50 grams of a substance containing meth or 50 grams of a substance containing cocaine or 100 grams of a substance containing heroin.

  • 21 USC 841(b)(1)(C) – 0-20 years in prison.

This statute applies to a detectable amount of cocaine, heroin, or methamphetamine. Subsections (b)(1)(A) and (b)(1)(B) carry minimum penalties: 10 year and 5-year minimums respectively.

On its face, the statute seems to be logically based. In other words, like most state systems, federal courts apply increasingly stringent punishment ranges to increasing quantities of drugs.

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However, the logic has been subject to criticism for two reasons. First, in conspiracy cases, the aggregation of drugs is very broadly authorized. Some drug conspiracies could last a year or more. That means that a small player who deals perhaps 10 grams cocaine per transaction could quickly accumulate exposure over time. That player, who may never have seen 1,000 grams (a kilogram) of cocaine at one time, could be prosecuted under (b)(1)(A) and subject to a 10-year minimum sentence.

Second, there have been long-standing debates whether crack cocaine is punished too harshly relative to powder cocaine. More recently, the same concern has arisen regarding methamphetamine. It takes approximately half as much methamphetamine to qualify under (b)(1)(A) as cocaine. Yet, methamphetamine consumption may not equate at that rate. In other words, the penalty aggregations may not correspond to either drug consumption or street value.

Most attorneys who prosecute or defend federal drug defendants agree that nearly all federal cases could qualify for any of the three ranges. That means that the difference between a minimum of nothing or 5 years or 10 years is in the hands of the prosecutor, which means that it is ultimately in the hands of the Attorney General and his or her priorities.

Ultimately, Attorney General Sessions’ recent directive will increase sentences and subject many more drug defendants, some of which who do not deal in quantities that are very large, to stiff mandatory minimum sentences.

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