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Holder's Plan for Drug Offenders: 5 Things to Know

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By Brett Snider, Esq. on August 12, 2013 10:55 AM

U.S. Attorney General Eric Holder is set to announce a new plan for drug offenders, ordering prosecutors to ease up on low-level drug cases to avoid overcrowding in federal prisons. (Head to FindLaw's Strategist blog for live updates from the speech as it happens.)

Attempting to correct "unfairness in the justice system," Holder's plan for the Department of Justice (DOJ) seeks to avoid the harsh imposition of strict mandatory minimum sentences for minor drug offenders by encouraging alternatives to incarceration and "compassionate release" for non-violent, elderly offenders, reports The New York Times.

Here are five things to take away from Holder's new plan:

1. Drug Quantities to Be Omitted for Minor Offenses.

Federal mandatory minimums require that certain prison sentences be imposed on convicted drug defendants even if the circumstances in state court would lead a judge or prosecutor to impose little to no jail time or probation.

Holder's new policy would seek to avoid imposing mandatory minimums, which are often based on the weight of drugs associated with a crime, by simply omitting the weight in the charging documents (i.e., "conspired to distribute cocaine" instead of "conspired to distribute 5 kg of cocaine").

2. Defendants Must Meet Certain Criteria.

According to the Times, the policy memorandum sent to federal prosecutors by the DOJ on Monday allows this omission of drug weights only if the defendant's crime:

  1. Was non-violent,
  2. Did not involve a weapon,
  3. Did not involve sales to minors,
  4. Did not involve ties to gangs or cartels, and
  5. Was preceded by an insignificant criminal history.

Policy-wise, this would ensure prosecutors use discretion -- as seen in states that have changed their sentencing laws -- to cut sentences short only for mostly non-violent, first-time offenders with no gang ties.

3. Federal Law Remains the Same.

This new policy for federal prosecutors does not affect the legality of current federal mandatory minimums, only how prosecutors use their discretion to impose or avoid them. These minimum punishments for drug crimes will not change until Congress changes the laws.

4. Alternatives to Incarceration Encouraged.

Various state and local jurisdictions have drug diversion programs that allow non-violent or first-time offenders to avoid jail by involving themselves in counseling and/or community service in exchange for the suspension of their sentences.

Holder's plan would encourage these programs on the federal level, as well as the "compassionate" early release of elderly prisoners who have served the majority of their time, reports The New York Times.

5. It May Reduce Prison Populations.

Although there are moral underpinnings to the DOJ's new policy, Holder also cites economic benefits to reducing the prison population. An estimated $80 billion was spent on prisons in 2010, the Times reports.

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