Who is in Charge at Obama's Justice Department?

Nat Hentoff

In the first two parts of our series on criminal justice reform, we wrote about the efforts of U.S. District Court Judge John Gleeson, a former career federal prosecutor who has been on a crusade against the systemic abuse of power by federal prosecutors.

We’ve found that Obama and Holder failed to take Gleeson’s recommendations seriously, or take the steps necessary to reform the abusive charging policies he repeatedly criticized.

Gleeson has been a fierce critic of a practice used frequently by prosecutors to coerce defendants to plead guilty and waive their constitutional right to a jury trial. It involves the imposition of a “trial penalty” by adding statutory enhancements to an indictment, which dramatically increase the prison sentence a judge is forced to impose if a defendant is convicted at trial.

For example, someone charged with selling drugs over a certain threshold must receive a 5- to 10-year mandatory sentence, depending solely on the amount of drugs involved. The prosecutor’s addition of two non-violent drug convictions to the indictment as a prior felony information (or, notice of filing an enhancement) can turn a minimum mandatory 5-year sentence into a 40-year sentence, and a minimum 10-year sentence into a life sentence.

In United States v. Kupa, Gleeson described the prosecutor’s threat of a life sentence to coerce a guilty plea out of a non-violent drug offender as “brutally unfair” and “the sentencing equivalent of a two-by-four to the forehead.”

Gleeson wrote, “Prior felony informations have played a key role in helping to place the federal criminal trial on the endangered species list,” noting that only 3 percent of all criminal cases charged in federal courts today results in a trial by jury.

From 2010 to 2014, Holder issued a series of memoranda to all U.S. attorneys that purported to modify Department of Justice (DOJ) charging policies in drug cases — which comprise only one-third of all U.S. criminal cases — to eliminate many of the abuses criticized by Gleeson.

An Aug. 12, 2013, memorandum directed that “severe mandatory minimum penalties (must be) reserved for serious, high-level, or violent drug traffickers.” The memorandum also required prosecutors to look for specific criteria in each case before deciding to charge a defendant for mandatory minimums, and to consider specific factors before filing for sentencing enhancements based on the defendant’s prior “felony drug offense” convictions.

Holder’s memoranda are, to one degree or another, either confusing or downright misleading. They have all failed to modify the plain language of the U.S. Attorneys’ Manual that requires assigned prosecutors to “charge … the most serious offense that is consistent with the nature of the defendant’s conduct, and that is likely to result in a sustainable conviction.”

Responding to a question by email, Gleeson said that “the prosecutors in this district appear to have complied fully with the August 2013 policy,” and acknowledged that fewer drug trafficking defendants are being charged with offenses that trigger mandatory minimums. He also said that he had not seen the use of a prior felony enhancement as egregious as the one he wrote about in the Kupa case since Holder’s final memorandum was issued in September 2014.

Considering the drubbing Gleeson gave the assigned U.S. attorney in that case, we have to wonder if prosecutors just lack the nerve to file sentencing enhancements in his court.

Federal criminal defense lawyers across the country are reporting the failure of U.S. attorneys to comply with Holder’s policy. According to Gleeson, a March survey of federal defenders found some level of non-compliance in nearly 60 percent of district offices that responded to the survey.

“In 23.9 percent of reporting districts (22 of 92), all or most prosecutors still do not comply with the Holder charging policy regarding drug quantity and/or (U.S. Code) 851 enhancements,” he wrote in an email. “In 35.8 percent of reporting districts (33 of 92), a minority or substantial minority of prosecutors still (and it may only be sometimes, rarely, or in only one case) do not comply with the Holder charging policy…”

The U.S. Sentencing Commission’s 2014 Sourcebook of Federal Sentencing Statistics support the survey’s findings. While only 6 to 7 percent of drug offenders charged in U.S. courts qualify for a mandatory minimum under Holder’s 2013 policy, more than 50 percent of drug offenders were charged with a mandatory minimum the year after the policy was enacted. That means Holder’s policy is being ignored in a majority of the cases where it should be followed.

Before stepping down from his position, Holder delivered a speech in February at the National Press Club in which he celebrated a 20 percent reduction in the number of drug trafficking offenders charged with mandatory minimums, a victory he attributed to his 2013 policy.

“Put another way,” Holder crowed, “we have gone from seeking a mandatory minimum penalty in two out of every three drug trafficking cases, to doing so in one out of two.”

He failed to mention that only 6 to 7 percent of those charged with drug trafficking offenses actually qualify for a mandatory minimum under his policy.

Incredibly, Holder bragged that his 2013 policy had increased the percentage of cases that are resolved by a plea agreement to 97.5 percent. Now just 2.5 percent of defendants in federal drug cases exercise their constitutional right to a trial by jury.

Holder’s apparent contentment with what amounts to a mutiny by federal prosecutors raises a question Obama should ask the current Attorney General Loretta Lynch and her chief deputies: “Who is in charge at the Justice Department?” It’s clearly not the attorney general if such a large number of federal prosecutors can disobey a mandatory charging policy without fear of disciplinary sanction.

Changing a written policy is easy, but it is also meaningless if you take no action to enforce that policy in its practical application. The seriousness of this problem deserves a better response from Obama during 2016.

Nat Hentoff is a nationally renowned authority on the First Amendment and the Bill of Rights. He is a member of the Reporters Committee for Freedom of the Press, and the Cato Institute, where he is a senior fellow.