One year ago, Attorney General Eric Holder announced the “Smart on Crime” initiative of the federal Department of Justice, which is aimed at releasing low-level drug offenders from federal prisons (see ADAW, August 19, 2013).

Holder directed federal prosecutors not to seek mandatory minimum sentences for nonviolent drug offenses, and also asked Congress to pass the Smarter Sentencing Act, which would reduce the length of sentences and give federal judges more discretion.

However, many drug offenders are headed for state, not federal, prisons, and their prosecutions are by district attorneys, not federal prosecutors. The National District Attorneys Association (NDAA) has not formally endorsed or proposed either bill, but the “NDAA has testified during both hearings that reducing mandatory minimum sentences and/or giving federal judges discretion on applying mandatory minimum sentences solely as a cost-saving measure was a dangerous precedent and could have grave consequences, including a potential uptick in crime rates,” according to the NDAA’s website, which adds that the NDAA is drafting a policy paper on sentencing reform.

State courts different

Still the NDAA has yet to take a position on Holder’s initiatives — and it may never take a position. “All of our members are associated with state courts,” said Kay Chopard Cohen, executive director of the NDAA, explaining that “it’s not our position to comment on what the feds want to do.”

She told ADAW that district attorneys have more options than federal prosecutors in terms of sentencing — there are local jails, for example. “At the state level, lower-level offenders would probably go to the local jail,” she said. “In some states, drunk driving or drug-impaired driving has mandatory minimums that are only two days to a week,” she said. “The federal system is different.”

(Homicide, unless a federal agent is killed, is a state, not a federal crime, so it’s not correct to say that state offenses are by definition less serious than federal offenses. However, even low-level drug offenses, if they involve crossing state lines, can involve federal prosecution and prison sentences.)

Presentence investigations

Cohen also noted that, recently, the rising costs of incarceration have led many jurisdictions to look more closely at who is appropriate for incarceration. “It’s not unusual, especially when drugs or alcohol are involved, for a judge to request a presentence investigation into the most appropriate consequence, which may not be incarceration,” she said. “With the proliferation of drug courts and impaired driving courts, you see offenders being ordered to treatment, with incarceration as the backup.” In these arrangements, which don’t always end well for offenders, participants are told that ‘If you can’t follow through with your treatment, if you’re not willing to cooperate or not following through all parts of the program, then incarceration is the other option,’” said Cohen. “But you can only do that in state courts.”

More treatment options

In fact, district attorneys would like there to be more treatment options, because they recognize that so many of the crimes they prosecute, even if not directly related to alcohol or drugs, are caused by them — a person addicted to drugs committing a burglary or forgery to pay for his habit, for example. “I hear more frustration from local prosecutors about there not being enough services, there aren’t enough treatment beds,” she said. Instead, they end up with programs that may consist of attending AA meetings, while many people might benefit more from an inpatient program, she said. And while the NDAA hasn’t taken an official position on medication-assisted treatment, many prosecutors are looking for more treatment options. “There’s been such an increase in heroin usage that prosecutors are asking how to address this,” she said. “They are more open to getting more information” about medication-assisted treatment with methadone, buprenorphine and Vivitrol, she said.

Pardons and clemency

The Justice Department is also expediting pardons for federal inmates who would have received a lower sentence if convicted today of the same offenses, who are nonviolent low-level offenders, who have served at least 10 years of their sentence, who do not have a significant criminal history, who have shown good conduct in prison, and who have no history of violence. Last December, President Obama commuted the sentences of eight individuals under this initiative.

The American Civil Liberties Union (ACLU) approves of the Smart on Crime and other initiatives designed to keep people who commit low-level drug crimes out of prison. “Our country’s top prosecutor continues to show his dedication to ending the failed, racially biased war on drugs,” said Laura W. Murphy, director of the ACLU’s Washington Legislative Office, in a statement. “With each proposed reform, we move closer to a criminal justice system that is smarter, fairer and more humane,” she said. “Attorney General Holder seems committed to making criminal law reform his legacy, and we’re eager to see what he does next.”

The Justice Department has a Pardon Attorney’s Office that is reviewing such claims, and will help coordinate pro bono lawyers from the Clemency Project 2014, which is made up of federal public defenders and independent, outside groups. All 93 U.S. attorneys have been asked to help identify candidates for clemency. Last month, the attorney general took a step further, specifically proposing reducing prison sentences for nonviolent drug traffickers by 11 months.

Meanwhile, treatment providers do not report seeing increased numbers of patients as a result of federal sentencing reform. This makes sense, said Cohen. “It’s not possible to open up the floodgates in the federal prisons, because you don’t get sent to the federal penitentiary for using,” she said. “You can see that our federal penitentiaries are not filled with just drug users, whereas at the state and local level, you see a lot more drug programs, treatment programs, drug courts.”