War on Drugs

Federal Prosecutors Say They Never See Low-Level Drug Offenders

Defending the DOJ's new, harsher charging policy, assistant U.S. attorneys say they only prosecute high-level offenders.



The National Association of Assistant United States Attorneys (NAAUSA) helped sink federal sentencing reform last year by arguing that there is no such thing as a nonviolent drug offender. Now the group, which represents about 1,500 prosecutors across the country, is defending Attorney General Jeff Sessions' new, harsher charging policy by arguing that there is no such thing as a low-level drug offender in the federal system.

"We at the federal level don't prosecute 'low-level drug offenders,'" NAAUSA Treasurer Steve Wasserman said during a conference call with reporters this week. "We don't prosecute users. Less than 1 percent of the federal prison population consists of inmates who are serving sentences for simple possession, and in almost every one of those cases, those individuals are couriers that plead down to a simple possession charge from a trafficking offense."

In other words, you can't be a low-level drug offender if you participate in distribution. Hence the phrase "low-level drug dealer" is, according to Wasserman, oxymoronic. (NAAUSA President Steve Cook made a similar argument last fall, as C.J. Ciaramella noted at the time.) Yet surely it is possible to draw distinctions among people convicted of trafficking, based not only on the amount of drugs involved but also on the role the offender played. A courier or street dealer might participate in an operation that handles a large quantity of drugs, but he is still on a low level compared to the people running the operation.

Even as NAAUSA denies that any federal drug offenders can meaningfully be described as "low-level," it says the law "already provides ample avenues for sparing the truly deserving from long terms in prison" (as Breitbart News puts it). Those avenues are sentencing breaks for defendants who provide "substantial assistance" or who qualify for the statutory "safety valve." The latter provision lets certain nonviolent, low-level drug offenders avoid mandatory minimum sentences.

The charging policy reversed by Sessions, which Attorney General Eric Holder announced in 2013, provided relief for defendants who did not benefit from either of those exceptions. The policy, which may have helped more than 500 defendants each year, covered nonviolent drug offenders without leadership roles, significant criminal histories, or significant ties to large-scale drug trafficking organizations. Holder instructed federal prosecutors to refrain from specifying drug weight, which is what triggers mandatory minimums, in charges against such defendants.

NAAUSA's position, then, is that 1) there are no nonviolent, low-level drug offenders in the federal system, and 2) federal law already helps them enough. Breitbart News reporter Ian Mason (who mentions my recent column about Sessions' policy shift as an example of the criticism NAAUSA is trying to rebut) adds to the confusion by arguing that mandatory minimums "kick in at weights that are hardly typical of personal use or small-scale dealing." Mason notes that the five-year minimum applies to offenses involving 100 grams of heroin, 500 grams of cocaine, or 100 kilograms of marijuana.

That list tellingly omits crack, which triggers the five-year mandatory minimum at 28 grams (about an ounce). Mason also does not mention that 100 marijuana plants, regardless of how mature they are, are treated as equivalent to 100 kilograms, which sweeps in many small-scale operations. Most important, he ignores the distinction between drug weight and level of involvement, one of the main points Holder was trying to address.

Consider Sharanda Jones, a prisoner whose life sentence President Obama commuted in 2015. Jones was a first-time, nonviolent offender accused of transporting cocaine from one city to another. Jones was convicted of conspiracy to distribute crack, and the total quantity allegedly involved, 24 kilograms, made her a high-level offender according to federal sentencing guidelines. But her role in the organization was relatively minor.

The list of Obama's 1,715 commutations includes many other examples of nonviolent offenders who received lengthy sentences but could not reasonably be described as major dealers, let alone kingpins. NAAUSA wants us to pretend those people do not exist.