Drug War

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.

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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.

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  1. 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.

    On the resume of a federal prosecutor gunning for promotion or running for office, no one he convicted is low level.

  2. Mess with the bull, and you get the horns.

    And I don’t know of anything more full of bull than drug laws.

  3. [The] statutory “safety valve” lets certain nonviolent, low-level drug offenders avoid mandatory minimum sentences.

    Well, then, those sentences are not “mandatory”, are they? Seems like more “safety valves” could be implemented.

  4. Breitbart News reporter Ian Mason

    Another draconian hair dangling off Steve Bannon’s frumpy sac.

  5. I am very glad to find that there are no low level drug offenders in the FEDERAL criminal system. Like murderers, low level is a state handled offense.
    But I notice that given the feds penchant for parsing words, damn near anyone is ‘participating in distribution’ just by buying a calm evening. I also notice that the most likely way to be a ‘truly deserving’ offender who gets a ‘break’ is to risk your life as a snitch forced into higher levels of involvement in order to catch a bigger fish. Note to the feds, big fish have big teeth.

    Personally, I think that the feds actually believe all drug users are violent.

    1. The “no low-level drug offenders” categorization is sort of circular reasoning – if you’re attracting federal attention then you’re higher-up enough to attract federal attention, ain’t ya?

      1. The beer truck delivery guy is worse than the friend who shows up with beer who worse who was too lazy to beer his own beer. Perfect logic. Let’s kill them all.

        1. too lazy to beer his own beer

          Just how many beers have You had?

  6. You couldn’t imagine a more insane circumstance than a society that glorifies alcohol fighting a ruthless drug war. It’s Twilight Zone material. Throw in the lunatic Jesus freaks and kiss your ass goodbye.

    1. Dude, it’s your fault.

  7. I used to be a federal criminal defense attorney. They’re right that the feds don’t do ‘low-level drug offenders’ or marijuana possession cases; they don’t waste their time on that. But most of the defendants I saw were just users of crack or heroin who at some point assisted in the transfer of drugs to another person. The feds would get someone facing a charge of their own to wear a camera and buy as much of anything as they could. So lets say they get somebody to sell a few buds of marijuana to their friend (who now happens to be working for the DEA in order to get a sentencing reduction for cooperation)…and this defendant might not be an actual dealer of any kind, they’re just helping their friend out whose hard up. They’ll have these transactions on camera and use as the basis for the initial distribution and conspiracy charge. Then the friend testifies to all the drugs they’ve ever seen the defendant possess…an ounce here, a gram there…whether it was for personal use or not; and this testimony is used to increase the drug weight to much greater levels. This is how they get a defendant to face 10-30 years in prison for distribution and conspiracy (due to the fed sentencing guidelines) when in state court they might be looking at 1-5 for the same conduct, or even a misdemeanor possession charge. So yeah, the feds don’t do low level offenders…but the feds turn almost every low-level offense into a major felony conspiracy and distribution charge.

  8. I saw NAAUSA but my mind read NAUSEA

  9. If the DOJ only prosecutes high level drug offenders, why don’t they prosecute high level government offenders like Barry Sotoero and Hitlery Clinton?

  10. There is no such thing as a non-violent drug offender.. Sigh… Now this statement is just depressing on so many levels. Mostly because of the volumes it reveals about how ignorant and philosophically degraded the average end of the empire American citizen/subject/serf has allowed himself to become. For fucks sake… Every single “drug offense” and “drug offender” is nonviolent. By definition. Actual crimes, which is to say the kind with actual victims and actual violence are known by other names such as theft, fraud, murder, kidnapping, rape or extortion. Not one of these things is inherent to being a “drug offender”. Here the Statists’ are able to provide us with a most striking example of the perverse irony with which the Devil writes his comedies. Because it seems that all of the aforementioned crimes are inherent to the act of prosecuting the war on drugs. Prosecutors, who at first impression may seem to be reasonably intelligent and self aware will nevertheless gleefully commit and even brag about committing every crime on the list. Other than the rape. That is something commonly joked about but rarely bragged about. A drug war crime of the sort that are facilitated and permitted but never personally committed.

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