Federal drug defense lawyer John Helms explains the Trump administration’s new prosecution policy and what it means for defendants in federal drug cases
On May 10, 2017, Attorney General Jeff Sessions sent a memo to all federal prosecutors that significantly changed the landscape for federal drug cases, reports John Helms, a federal drug defense lawyer based in Dallas. The Attorney General heads the United States Department of Justice and therefore sets policies that Justice Department employees, including federal prosecutors, must follow. A memo from the Attorney General is official Justice Department policy and must therefore be followed by federal prosecutors.
This memo tells federal prosecutors that they must “charge and pursue the most serious, readily probable offense.” Charging something less serious should be unusual and requires supervisory approval and a written justification in the file.
This may not sound like a significant change, but it is. It means that federal prosecutors must charge crimes with the highest mandatory minimum sentence that the prosecutor thinks can be proven, even if the prosecutor thinks the mandatory minimum sentence is too harsh for the facts, says federal drug defense attorney Helms.
A mandatory minimum sentence means that, if a defendant is convicted by a guilty plea or a trial, the defendant cannot be sentenced to LESS THAN the minimum sentence that applies to the crime.
Most federal crimes do not have mandatory minimum sentences. By far the most commonly charged type of federal crime with mandatory minimum sentences is drug distribution. For federal drug crimes, the amount of drugs is the most significant factor in determining the mandatory minimum sentence.
For example, a first offense for distribution of 500 grams or more of cocaine with no death or serious bodily injury carries a 5-year mandatory minimum. If it is 5 kilos or more, the mandatory minimum is 10 years.
Here is how the Sessions Memo works. Let’s say it can be proved that a person was involved with a group of people who together distributed 6 kilos of cocaine. Before the Sessions Memo, a prosecutor who thought, for example, that someone was less responsible than the others could charge that person with 500 grams or more, with a 5-year mandatory minimum. The prosecutor could threaten to increase the charge to 5 kilos (10-year mandatory minimum) if the person insisted on going to trial. Now, the prosecutor MUST charge the 5 kilos (10-year minimum), and the situations when the charge could be reduced are rare. This gives prosecutors less flexibility.
It also means that defendants whose recommended sentence, according to the Federal Sentencing Guidelines, is less than the mandatory minimum, are far more likely to receive a sentence that is more than the recommendation of the Federal Sentencing Commission, which is charged with studying and recommending federal criminal sentences; even with the best drug defense attorney on their side. Before the Sessions Memo, those defendants could be charged with a lower mandatory minimum to avoid this.
There are two ways to avoid a mandatory minimum sentence. First, if a person provides “substantial assistance” to the government in investigating or prosecuting another person, the prosecutor can ask the judge to sentence the defendant below the mandatory minimum. The problem is that many defendants do not know enough information to tell the government something they do not already know or do not have the opportunity to testify against someone else because everyone they know pleads guilty. Also, there is no precise definition of “substantial assistance,” and some federal prosecutors are rarely willing to agree that a defendant’s assistance has been “substantial” unless they testify at trial.
If a prosecutor has a reputation for being stingy with substantial assistance credit, and the prosecutor must charge the highest mandatory minimum, there may be little reason for a defendant to cooperate with the government. This could mean more trials, which use valuable federal prosecutorial and judicial resources.
The second way to avoid a mandatory minimum is through the “safety valve” statute, 18 U.S.C section 3553(f). To qualify for it, you must satisfy these criteria:
- You must have almost no criminal history.
- You must not have used violence or credible threats of violence and not have possessed a firearm or other dangerous weapon.
- The crime did not involve death or serious bodily injury.
- You must not be an organizer, leader, manager, or supervisor of others in the crime.
- You must provide all information you have to the government about the crime and all criminal activity linked to it.
If you qualify for the safety valve, the mandatory minimum will not apply.
Under the Sessions Memo, prosecutors will have less ability to help make sure that sentences really fit the crime. Unless one of the two exceptions applies, there is nothing a judge can do about this, because a mandatory minimum sentence will tie the judge’s hands.
If you or a loved one have been charged with a drug crime in the Dallas area, you should strongly consider hiring someone who really knows the ins and outs of the law. Contact federal drug defense lawyer John Helms at (214) 666-8010 or fill out the online contact form. You can discuss your case, how the law may apply and your best legal options to protect your rights and freedom.