Under mandatory sentencing laws, in federal courthouses prosecutors — not judges — effectively decide how long many drug criminals will spend behind bars, says the Los Angeles Times. The result has been federal prisons packed with drug offenders. Attorney General Eric Holder is 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. 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. Mandatory-sentencing laws were supposed to lead to uniformity, but statistics show huge variations across the U.S. 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. “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, a district with a history of tough prosecutions.