The article in today’s NY Times is remarkable for at least two reasons. The first is the Times’ veiled criticism of executive orders that circumvent congressional statutes. This is a very technical but important constitutional issue and it’s refreshing to see the Times address it, even if only obliquely. The second issue, likely the impetus for the first, is the report that beginning today Attorney General Holder will instruct federal prosecutors to omit quantities of drugs in indictments for low-level cases to avoid minimum mandatory sentences. There is no definition of low-level cases, which, effectively, gives unlimited power to the prosecutors to toss drug cases at will.

The Controlled Substances Act at 21 USC 844 already contains a misdemeanor provision for “Simple Possession” of a controlled substance. Section (b)(1) of this provision contains grounds for a judge to sentence (after a trial or plea of guilty) a defendant to “probation, expungement of records relating to arrest, etc.” And this is without entering a judgment of guilty. These provisions have been in the law since at least 1986 (portions go back to the original CSA in 1970). If Holder’s intention is to reduce prison sentences for small time offenders, it appears Congress beat him to the punch on this one a quarter century ago.

On the other hand, what Holder is sending to his prosecutors will no doubt give them a chuckle when they read it. Having a quantity of drugs listed in the indictment may influence the choice of original charges but a judge is fully aware of the details of a case before she or he sentences a convicted defendant. Omitting the quantity may make it difficult (or impossible) to charge someone with a specific provision having a quantitative criterion. However, in the absence of such a charge, it would seem to me that a judge still could adhere to the minimum mandatory sentencing guidelines on the basis of sentencing memoranda submitted by both sides at the conclusion of a guilty plea or verdict AND the presentence report sent to the judge – not to mention the case facts themselves. At the time of sentencing, the judge should be well aware of all the facts in the case, including those that were not mentioned in the indictment but which pertain to the violation(s) charged. This order by Holder, aside from its offense to the constitutional prerogatives of the Congress, seems quite stupid. It will likely attract even more than the veiled criticism of the Times.

John Coleman
President
Drug Watch International

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