Crime & Justice

Drug policy change by Attorney General Holder expected to focus law enforcement on higher level criminals

U.S. Attorney General Eric Holder in Washington, DC in April 2013.
U.S. Attorney General Eric Holder in Washington, DC in April 2013.
Win McNamee/Getty Images

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On Monday, U.S. Attorney General Eric Holder announced a plan to address mandatory minimum sentences that send some low-level drug offenders to federal lockups for years.

Former Assistant U.S. Attorney Lee Altschuler said the change was a long time coming.

"It's a breath of fresh air that'll be felt across the country," Altschuler said.

The change is a policy one, not legislative. Holder said he's instructing U.S. Attorneys to essentially water down charges against people who are non-violent, are not members of gangs or other criminal organizations, and face low-level drug offenses.

For example, a man might get caught selling a backpack containing 5 kilos (a lot) of cocaine. He might have left the bag at his girlfriend's house the night before, and she knew there were drugs inside. He could be convicted of drug trafficking and she of conspiracy. Because of the high amount of drugs involved, current federal law mandates both crimes carry a 10-year mandatory sentence.

Altschuler said he sees the lower level offender – the "small fry"– trigger the same sentence as the "big fish" fairly often.

"They're the minor participant, the lookout or somebody who carries a bag of money from a dope deal," Altschuler said. "The right result is six months in jail or a year, but not 10 years."

It's unclear how many cases will be impacted by the policy change. Holder said about half of the federal prison population – which is 40 percent over capacity – consists of drug offenders.

In 2012, about 450 drug offenders went to prison from the Central District of California, which includes Los Angeles County and most of Southern California. Of that 450, about a third received at least the mandatory minimum sentence. Nationwide, more people tended to receive at least the minimum. (See below for more statistics.)

But on average, L.A. actually has longer sentences for drug trafficking: 82 versus 72 months.

Loyola Law Professor Laurie Levenson said there are probably several reasons for the differences. But in general, federal authorities in Southern California have shown less interest in going after small time drug offenders. That would explain the lower number of defendants.

"Our U.S. Attorney Andre Birotte has had to take a hard look at how many resources he has, how many prosecutors," Levenson said. "So he can't just throw a lot of money at prosecutions for drug offenses. He has to pick the big ones and bring those."

The U.S. Attorney's Office did not respond to a request for comment. Nor did the federal public defender in Los Angeles.

Choosing cases that qualify will be a matter of discretion for local prosecutors. Levenson said that means the policy's not set in stone. 

"I don't think people can say, 'Oh, I can do marijuana, I can do drugs, they're not going to come after me'," Levenson said. "The federal authorities, if they think the pendulum starts swinging back too much, they can put a stop to it." 

Retired LAPD Deputy Chief Stephen Downing, now a board member at Law Enforcement Against Prohibition, said for him, the change is a small, but symbolic one.

"Maybe it'll inspire people to think differently about letting people out of prison," Downing said. "We could use that in California."