Mandatory Minimums: Changes in Attitude, Changes in Latitude
We currently have five cases involving federal charges of manufacture or conspiracy to manufacture methamphetamine, and right now they’re all in limbo. In the news recently is a change in national prosecution policy by U.S. Attorney General Eric Holder. Congress is also looking at changing laws, and it’s getting attention in the press – such as HERE (click).
Eric Holder has directed each U.S. Attorneys office to reevaluate their cases and avoid charging people with crimes that carry mandatory minimums, so long as the criminal defendants meet certain criteria. Perhaps it goes without saying that individuals prosecuted in federal court do not routinely find themselves in a better position than when they started. The question on everybody’s minds is what will change, and when. What we do know, because of the directive by the Attorney General, is only certain people are going to be eligible:
1. Moderate to low criminal history;
2. Not violent;
3. Not a leader, supervisor, manager, or other lead role in the manufacturing conspiracy;
4. No ties to a cartel or crime syndicate.
The full memorandum can be found HERE (click)
Here in Central Illinois no one knows at this time how the national directives will be implemented locally. The U.S. Attorney’s office for the Central District of Illinois is still formulating its approach, and it is likely that no answer will be clear until the end of September at a minimum. Understandably we have gotten many calls from clients as well as others who eager to know if they will be affected, and we simply do not fully know yet.
What we do know is that whatever changes occur will arguably be more substantial in Peoria than elsewhere in the country. Peoria is in the Central District of Illinois, which not only sees a lot of charges carrying mandatory minimums, but also enhancements of those minimum sentences, Individuals charged with manufacturing over 500 grams face an escalating range of sentencing going 10 years, 20, and then life. Where a person falls along this continuum is governed entirely by whether they have qualifying drug prior convictions. One prior conviction raises the mandatory minimum from 10 to 20, and another takes it to life. These are known as “851″ filings (21 U.S.C. 851) – recidivist enhancements for repeat offenders – and are specifically mentioned as disfavored in the Holder memo. Our local district is 5th highest in the country for using 851 enhancements (CLICK for chart). Here 79% of possible defendants get their mandatory minimum bumped up, when over half the country does this less than 15% of the time. The sentence reduction for cooperation is also lower here than elsewhere in the country;
Our point of view from the defense perspective overall is that Holder’s memorandum is a welcome shift. It is understandable that Congress needs to get tough on methamphetamines, which is a rot upon society. However, in the practical application of mandatory minimums, we end up over-charging many individuals who ought to be classified merely as users rather than manufacturers or conspirators of manufacturing. Here’s how it happens:
1. Laws now restrict how much pseudoephedrine (a main ingredient in meth manufacture) people can buy in a month. When there is a restriction on people’s ability to purchase pseudoephedrine, this becomes a rarer commodity.
2. Users looking to buy meth but who are strapped for cash can get more bang for their buck if they go buy pseudoephedrine pills and then trade those pills for meth.By this exchange of money for an ingredient (“meth precursor”), arguably they are still functioning as users trying to get better value, rather than some notion of drug manufacturer. However, they have become a member of the supply chain for manufacturing.
3. They are caught and charged as part of the manufacturing conspiracy. Tactically, this is a good approach by the prosecution because such individuals will quickly give up their information about the dealers. Cooperation is often the only hope they have to avoid the full mandatory minimum (often, 10 years) in the Bureau of Prisons. Typically, they get a ten or twenty percent reduction. If they’re not very connected to the actual manufacturers, their information isn’t worth much because they quite simply don’t know as much – so the reduction is smaller.
Thus, we see how easily users can be charged as manufacturers within the world of methamphetamine. Because meth can be so easily made once the right ingredients are procured, pseudoephedrine becomes the currency. This makes it unique from other drugs. We suspect this was a large motivation for Attorney General Holder’s directive that we shift our policies in how these situations are being prosecuted.
We’ll post more updates as they become publicly available.