Holder’s “Smart On Crime” Policy is Pretty Dumb

Attorney General Holder spoke at the American Bar Association (ABA) in San Francisco last week and announced his "Smart On Crime" policy changes. The new changes include directing United States Attorneys to not charge "nonviolent drug defendants" with offenses that carry mandatory minimum sentences. This change will dismantle one of the most useful tools in drug enforcement's investigative tool box. It will also give drug traffickers an incentive to continue conducting their criminal activities. Prior to 1987, when mandatory minimum sentences and the U.S. Sentencing guidelines went into effect, many significant drug traffickers received only several years in prison for crimes that after the implementation of mandatory minimum sentences may have resulted in life imprisonment. I was a relatively new DEA agent assigned to the Los Angeles Division in the early 1980s. So, I can contrast the impact mandatory minimum sentences had on the drug traffickers I arrested, and I can tell you from first-hand experience that it was very significant. For example, in 1985 I investigated a cocaine smuggling ring that planned to smuggle 500 kilograms of cocaine into the U.S.. Eight people were indicted and upon their conviction, they were sentenced to three and a half years in federal prison. This was despite one of the defendants, a drug defense attorney, providing me, while acting undercover, a kilo of cocaine to supposedly sell to help finance the smuggling of the cocaine from Bolivia. Because of the federal parole system at the time, each defendant was immediately eligible for parole upon completing only one third of their sentences. The defendants walked away after only serving about 13-months in prison for possession, transfer and conspiracy to import 500 kilos of cocaine. It was these types of cases that prompted the Congress to pass mandatory minimum sentences to put teeth in the law. In 1988, I investigated a marijuana smuggling organization that had been in operation for over a decade and netted millions of dollars in illicit profits. The entire organization was caught red handed offloading over 14-tons of Southeast Asian marijuana from a fishing trawler. Over 60 defendants were arrested, some of which had prior convictions for marijuana smuggling. When they were informed that they were looking at life in prison due to mandatory minimum sentences because of prior drug convictions, the amount of marijuana and many other factors, they simply couldn't believe it. Many voiced that they wouldn't have become involved if they knew they could spend the rest of their lives in federal prison. The risk versus reward ratio simply wasn't worth facing mandatory minimum sentences. However, the possibility of making millions of dollars during a successful smuggling operation fully justified taking the risk if they would only face a couple of years in prison. Defendants can free themselves from mandatory minimum sentences by cooperating with investigators to identify other members of their criminal organization. Many, many more cooperated after 1987 because the incentive was great. Prior to this, almost no one cooperated. Cooperating defendants led DEA agents to identify and arrest many more people involved in drug conspiracies than ever before, eventually resulting in federal prison overcrowding. It's impossible to measure how many people are deterred from criminal activity knowing that if they are convicted of a federal drug crime they will spend a significant amount of time in prison. I think it's fair to say that the deterrent effect will be gone with Holder's new ill-conceived policy, and more people will be tempted to engage in drug trafficking when stiff sentences are off the table. Holder defined low-level drug violators for the ABA as a defendant who was "not an organizer, leader, manager or supervisor of others" involved in drug trafficking. He is referring to money couriers, counter surveillance look outs, drivers, transporters, etc. What the Attorney General doesn't realize is that these so-called "low-level" drug criminals are tomorrow's organizers, leaders, managers and supervisors within drug trafficking organizations. Without their involvement, drug trafficking organizations could not function, so why should they get a pass when they were all involved in the same drug conspiracy? Holder needs to do his job and enforce all the laws passed by Congress; not just the ones he likes.