War on Drugs

More Evidence That Eric Holder's Charging Memo Helped Drug Offenders

It looks like the policy Jeff Sessions rescinded did have a significant impact on the sentences received by nonviolent, low-level defendants.



A new report from the Justice Department's inspector general, noted here the other day by C.J. Ciaramella, sheds some light on the question of how many federal drug offenders benefited from a 2013 change in charging policy that Attorney General Jeff Sessions recently reversed. It looks like the policy Sessions rescinded did have a significant impact on the sentences received by nonviolent, low-level drug offenders, although precise numbers remain elusive.

In an August 2013 memo, Attorney General Eric Holder instructed federal prosecutors to omit drug weight, which triggers mandatory minimum sentences, from charges against nonviolent drug offenders without leadership roles, significant criminal histories, or significant ties to large-scale drug trafficking organizations. At the time, Paul Hofer, a policy analyst at Federal Public and Community Defenders, estimated that the new policy might result in shorter sentences for 500 or so defendants each year. Figuring out what actually happened is hard without better data on prosecutors' charging decisions, but the Office of the Inspector General (OIG) looked at a few indirect measures.

In a survey of assistant U.S. attorneys, the OIG found that nearly half (49 percent) said Holder's directive had affected their charging decisions. Another 20 percent said "it was already their practice…not to charge low-level, non-violent defendants with mandatory minimum-triggering drug quantities."

Looking at data from the U.S. Sentencing Commission, the OIG found evidence that federal prosecutors really did change the way they charged drug offenders. The share of federal drug offenders who did not qualify for the statutory "safety valve" (a narrower, pre-existing exception) but who nevertheless did not receive mandatory minimums rose from 25 percent in fiscal year 2012 to 35 percent in fiscal year 2015. Among drug defendants with a base offense level of 24 or higher and two criminal history points, which made them ineligible for the safety valve but not necessarily for the prosecutorial forbearance urged by Holder, 32 percent received mandatory minimums in FY 2015, down from 45 percent in FY 2013.

The OIG also cites evidence that federal prosecutors responded to Holder's reminder that they should focus their resources on the most serious drug offenders. "The percentage of drug defendants who possessed a weapon rose from 15 percent in FY 2012 to 16.2 in FY 2014, and to 17.2 percent in FY 2015," the report notes. "The percentage of defendants with an aggravating role in the offense, such as leadership of a drug conspiracy, under the sentencing guidelines also increased, from 6.6 percent of drug offenders in FY 2012 to 7.1 percent in 2014 and 7.7 percent in 2015."

Meanwhile, fewer low-level drug offenders were being prosecuted in the federal system. The report notes says "offenders who were eligible for the safety valve (first-time, non-violent drug offenders whose cases did not involve guns) fell from 38.5 percent of those federally sentenced in FY 2012 to 32.3 percent by FY 2015."

After Holder's memo, it seems, nonviolent, low-level drug offenders were less likely to face federal prosecution and less likely to receive mandatory minimums. Those were positive, if modest, changes, unless you share Jeff Sessions' view that there is no such thing as a nonviolent or low-level drug offender in the federal system and never has been.