Holder calls for fewer federal inmates

Georgia’s reforms

Last year, the General Assembly passed into law sweeping sentencing reforms that would save the state $264 million over five years by imprisoning fewer nonviolent offenders. The state now spends more than $1 billion annually to house 60,000 inmates. What Georgia did:

U.S. Attorney General Eric Holder Jr. wants to focus on violent, career criminals especially in regards to drug-related crimes to decrease inmates overloading an expensive federal prison system.

But how much real impact that directive will have on Georgia cases remains unclear — especially in metro Atlanta where many of the narcotics trafficking cases involve Mexican cartels, the very people Holder wants to target.

“We generally focus almost exclusively on organizations, either Mexican cartels or gangs,” said U.S. Attorney Sally Yates, who heads up federal prosecutions in the Northern District of Georgia. While this will certainly have an impact on us — and an impact that I welcome — it is not as great an impact as in some non-cartel districts.”

But Georgia federal courts have tended to lean toward heavy sentences — perhaps because of cartel involvement — in drug trafficking cases. For instance, the Northern District’s average sentence for drug trafficking in 2012 was 102 months, compared with 72 months nationally. In the Middle District of Georgia, it was 84 months, and the Southern District’s average was 78 months, according to the U.S. Sentencing Commission’s report.

Defense lawyer Bill McKenney said many federal judges in the state and elsewhere tend to follow often draconian sentencing guidelines even though in the past few years those guidelines were no longer binding as they had been previously. McKenney believes it would take federal legislation to reduce the impact of those guidelines.

“If you look across the board, our Northern District is pretty stringent when it comes to drug cases,” McKenney said. “There are a number of judges who still follow those guidelines, and they still treat them as if they were mandatory rather than recommendations.”

Other lawyers who practice regularly in federal court said prosecutors had played a key role in determining that defendants — including low-level drug traffickers — got stiff sentences because prosecutors control the charges at the indictment level and can reduce the charges during plea bargaining.

“That is one of the problems, not all gang members are equal,” said Jerry Froelich, a defense lawyer. “In these big Mexican gang cases they never get the major people. They always get the people who are sitting on a house or driving a car.”

Yates said her office has already been following the “Holder memo” that came out years earlier directing federal prosecutors not to always seek the highest “readily provable” charge and sentence and instead take a closer look at the circumstances involving the defendant or to send more cases to the state courts.

“Essentially, it told us to use our common sense,” Yates said. “Our office embraced that policy, and we have been doing that.”

She said she expects her office will scrutinize cases even more after Holder’s announcement Monday that otherwise nonviolent drug offenders with no ties to gangs or large-scale drug operations would no longer be charged with offenses that impose severe mandatory sentences. She said her office still deals with a significant number of cases that involve drug trafficking and other crimes that don’t involve large-scale operations.

As an example, Yates said that cases against a drug courier or a family member who gave another drug trafficker some minimal assistance might not be prosecuted as harshly.

But Holder left open holes that prosecutors could drive a truck through if they still chose, defense lawyers said.

Defense lawyer Bruce Harvey said that currently over-the-road truckers, who are hauling loads of legitimate goods but also carry a shipment of cocaine are prosecuted as drug traffickers even if they contend they didn’t know the drugs were present. It comes down, he said, to how the prosecutor views the defendant — a perspective Harvey hopes Holder’s new policy approach will help shape.

“If a public policy pronouncement comes from the top of the Department of Justice, there is a good possibility it will have some legs,” he said. “They (prosecutors) are the ones who are denominating certain people as drug traffickers or gang members. They can put any moniker on them that they want.”

Holder’s policy shift follows sentencing changes that the Legislature passed this year at the state level in Georgia for many of the same reasons noted by Holder at the federal level, including the expense of longer sentences. The Justice Department reported that the cost of incarceration in the United States in 2010 was $80 billion.

The new Justice Department policy is part of a comprehensive overhaul Holder made public in a speech to the American Bar Association in San Francisco. The nation’s top prosecutor also wants a policy that reduces the sentences for elderly, nonviolent inmates and find alternative sentencing for nonviolent federal criminals.

Yates said the new policy directive could still result in rather low-level members of drug trafficking groups getting significant sentences even if they don’t have significant criminal records. That would especially be true in cases when they kept weapons to protect themselves against other gangs targeting their drugs and cash.

“We are going to have to see how we implement this policy,” Yates said. “If you have someone who is protecting a stash house, almost always they are going to be armed to protect it, and that is one area that the attorney general has excluded.”