U.S. Attorney General Eric Holder made history when he acknowledged the failure of the drug war, specifically its skewed application toward racial minorities and harsh sentences that destroy communities and do little to tackle the underlying issues.
When he announced that federal prosecutors would therefore be directed to offer sentencing breaks to certain defendants by sidestepping the question of drug amounts that trigger minimum mandatory sentencing, many questions arose.
Our drug crimes defense lawyers know that one of those regarded how this would affect those defendants with pending cases. Holder had been clear to say that such action wasn't going to be applied retroactively to those who had already been sentenced. But those whose cases were still in the pipeline, so to speak, were left in limbo.
Holder has now said that the new policy of declining to pursue minimum mandatory drug sentencing will apply to those with pending cases. That means those have been arrested and not yet convicted, as well as those convicted and not yet sentenced.
The idea is that one-size-fits-all punishment is ineffective and also contributes to prison overcrowding. America contains 5 percent of the world's population, and yet incarcerates almost a quarter of the world's prisoners.
Still the policy shift affects only those who are facing federal drug charges. In order to meet the criteria, as laid forth by the U.S. Justice Department, defendants would be low-level, non-violent drug offenders with no affiliations with violent gangs or drug trafficking organizations.
Holder's office hasn't changed the law. It wouldn't have the authority to do so even if it wanted; that's the job of the legislative branch (though several efforts are afoot there). What it has done, however, is inform prosecutors handling cases with qualifying defendants to leave the question of drug amounts blank.
So for example, a person could be charged with marijuana trafficking if he or she is caught with 2.2 pounds or more of marijuana. If convicted, this would trigger a minimum mandatory sentence of 3 years, no matter what other circumstances exist. Same goes for 4 grams of heroin, opium, morphine or LSD, 28 grams or more of cocaine, ecstasy or methamphetamine or 500 or more pills of drugs like Dilaudid or Palladone.
However, if a federal prosecutor makes the call not to list the amount, the charge would not rise to a level triggering minimum mandatory detention.
Holder has said this will allow the government to reserve the most severe prison terms for those offenders who are violent, high-level drug traffickers and kingpins.
But again, this only applies to those facing charges in federal court. The federal Bureau of Prisons reports there are approximately 90,000 people doing federal time for drug-related offenses.
There are a far greater number serving time for drug offenses at the state level, as that is where most drug crimes tend to be prosecuted.
Alabama prosecutors have said nothing at this point to indicate they intend to follow Holder's lead on the sentencing issue.
As such, those facing drug charges in Alabama's state courts must make it a top priority to invest in an aggressive legal team with proven experience.
If you have been arrested for a drug crime in Birmingham, contact Defense Attorney Steven Eversole at (866) 831-5292.
Federal Sentencing Break to Include “Pipeline” Cases, Sept. 20, 2013, By Phillip Smith, StopTheDrugWar.org