Use of tough federal sentencing laws varies widely nationwide
Some U.S. attorneys have begun to ease up on policies that have led to lengthy sentences for low-level drug criminals. But change has been slow for others.
By Joseph Tanfani
November 3, 2013
As drug dealers go, Lori Ann Newhouse was strictly small time.
A high school dropout from a little Iowa town, Newhouse had three sons, a low-paying job as a telemarketer and a relentless methamphetamine habit. On St. Patrick's Day in 2011, Newhouse bought cold tablets used to make meth and traded them to a lab for a gram of the highly addictive drug.
Federal agents, it turned out, were watching.
Newhouse's bust landed her in the federal system in northern Iowa, where drug sentences have been among the harshest in the nation. Prosecutors decided that a past conviction — she had been caught in a motel room with drugs and a dealer boyfriend — qualified her for a doubled mandatory minimum sentence, from five to 10 years.
U.S. District Judge Mark W. Bennett, a fierce critic of mandatory sentencing laws, thought that made no sense. "Newhouse is not Iowa's Pablo Escobar," he wrote in an opinion, referring to the infamous Colombian drug lord.
In an interview from prison in Mitchellville, Iowa, Newhouse said, "I was absolutely a nobody in that case."
Under mandatory sentencing laws, it has become a not-so-hidden fact of life in federal courthouses that prosecutors — not judges — effectively decide how long many drug criminals will spend behind bars. The result has been federal prisons packed with drug offenders.
But Atty. Gen. Eric H. Holder Jr. is now trying to steer the Justice Department away from the get-tough policies that have led to lengthy sentences for what one judge called the "low-hanging fruit" in the drug war — dime-a-dozen addicts and street dealers.
Prosecutors have considerable discretion under the laws. If they cite the amount of drugs seized in the charging document, that can trigger the mandatory minimum; if they leave it out, it doesn't. For offenders with prior drug convictions, prosecutors can file a so-called 851 motion, named after a section in the federal code that automatically doubles a sentence — or makes it mandatory life.
Although the mandatory laws were supposed to lead to uniformity, statistics show huge variations across the country in how often prosecutors use them. Holder has instructed prosecutors to avoid using these powerful weapons against lower-level, nonviolent offenders, but, even so, they retain the authority to decide which small players get a break and which get slammed.
"It sounds really good, but it depends on how it's carried out in the field," Bennett said in an interview.
In the two months since Holder issued his new policy, some U.S. attorneys, including the two in Iowa, have begun to pull back, according to judges and attorneys.
"We had some terribly harsh sentences," said Randy Murrell, federal public defender in the northern district of Florida. "It's gone on for years, and no one had the courage and gumption to change it. I do think they are changing the policy now."
But elsewhere, change has been slower in coming.
"We are hopeful that this will loosen up some of the policies, but we have certainly not seen it yet," said Jonathan Hawley, the federal public defender in central Illinois, another district with a history of tough prosecutions.
The mandatory minimum drug law passed Congress in 1986, following the overdose death of University of Maryland basketball star Len Bias. The idea was to target drug kingpins and serious career drug traffickers.
"Drug kingpins — I haven't seen one yet," said senior District Judge Robert W. Pratt of Des Moines. Typically, he said, he handles meth users who turn to dealing in order to supply themselves.
Congress is now reconsidering the wisdom of that approach.
"There are instances where people who had a second or third strike got life in prison for a nonviolent crime," said Sen. Rand Paul (R-Ky.), who is sponsoring a bill with Sen. Patrick J. Leahy (D-Vt.), the Senate Judiciary Committee chairman, to allow federal judges to disregard mandatory sentences.
Prosecutors have been particularly aggressive in Iowa.
A study by the U.S. Sentencing Commission found that more than 47% of all drug defendants in Iowa's southern federal court district ended up with mandatory minimum sentences in 2010 — the third-highest rate in the country. In the northern district, it was more than 40%, the sixth-highest rate. There's even greater inconsistency in the use of 851 motions. In Iowa, they landed on about 80% of eligible offenders, according to sentencing commission data. In bordering Nebraska, the figure was 3%.
In a recent opinion, Bennett criticized the Justice Department for the "jaw-dropping, shocking disparity" in how prosecutors wielded the motions. He called the process "both whimsical and arbitrary, like a Wheel of Misfortune."
Some say prosecutors will be reluctant to give up a powerful tool to break open cases — the ability to threaten recalcitrant witnesses with a long federal sentence if they don't play ball.
"It is the underlying culture that you measure yourself with the lengths of sentences that you receive," Brett Tolman, a former U.S. attorney in Utah, said at a Senate Judiciary Committee hearing.
One federal judge in Brooklyn, N.Y., said Holder's policy didn't go far enough to rein in prosecutors who routinely wielded 851 sentence enhancements as a "2-by-4 to the forehead" to force defendants to accept plea deals. If the Justice Department "cannot exercise its power … less destructively and less brutally, it doesn't deserve to have the power at all," wrote District Judge John Gleeson, a former prosecutor, in a sentencing opinion last month.
A Justice Department official said the agency would monitor drug cases across the country but was confident that prosecutors "understand that these new guidelines are aimed at ensuring federal laws are enforced more fairly, and federal resources are used more efficiently."
The new policy has already led to some changes in Iowa.
In the southern district, the top prosecutor is Nicholas A. Klinefeldt, a former defense attorney with an unusual family history. His father is a convicted meth dealer who spent 10 years in federal prison, on a mandatory sentence doubled by an 851 motion. Klinefeldt said his office now declined smaller meth lab cases, avoided triggering mandatory minimums and rarely filed for 851 enhancements.
U.S. Atty. Sean Berry in the northern district had continued to seek tough sentences until Holder issued his memo, but said his office recently withdrew requests for double sentences for two drug offenders.
The shift comes too late for Newhouse, who received an 851 enhancement based on a state bust nine years earlier, when she was found with meth and psychedelic mushrooms.
Newhouse, 34, could have ended up with even more time. An addict since she was 15 with a string of drug-dealing boyfriends, she had other drug arrests. Prosecutors first classified her as a career offender; guidelines called for a 22-year sentence. But they decided that would be unfair and asked for 10 years, minus two years for cooperation.
"I was going to get years, regardless," Newhouse said. "They took all that time I had to be away from my kids, and doubled it."