Winning Strategies Seminar - and Drug War Reform

On January 28-30, Ted Lothstein and Richard Guerriero flew out to San Antonio, Texas for a three-day federal criminal defense continuing legal education course entitled "Winning Strategies Seminar" and presented by the Administrative Office of the United States Courts and Defender Services Offices Training Division. As members of the Criminal Justice Act Panel, for the United States District Court - NH and the First Circuit Court of Appeals in Boston, Attorneys Lothstein and Guerriero were entitled to attend this seminar.

As you can from the 2016 WS Agenda, this was a terrific seminar that covered a wide range of cutting-edge topics, that included:

• Addressing Issues of Race with the Jury Panel, presented by Federal District Court Judge Mark W. Bennett from the United States District Court of Northern Iowa
• Challenging Pattern Evidence: Fingerprints and Firearms Toolmark Analysis
• Defending Those who Defend Us: Considerations when Defending Veterans
• Trying Child Pornography Cases
• Winning Defenses in Sex Trafficking Cases
• Attacking Drug Conspiracies
• Loss Calculations in Fraud and White Collar Cases
• Special Defenses in Firearms Prosecutions
• Litigating Drug Cases in an Era of Federal Reform

Changes in Federal Drug Policy Limit Prosecutorial Discretion

This last topic - litigating drug cases in an era of reform - is a particularly hot topic right now because there is a groundswell of bipartisan support in New Hampshire and on the national level to decriminalize minor marijuana offenses, lower the penalties for drug possession and narcotics trafficking offenses, grant early release for prisoners who are serving lengthy prison terms for nonviolent drug crimes, and support treatment and rehabilitation rather than prison and punishment. For example, on August 12, 2013, Attorney General Eric Holder issued a Memorandum to all United States Attorney Offices, in which he set limits and guidelines for the prosecution of offenses that carry so-called mandatory minimum penalties. He wrote:

We must ensure that our most severe mandatory minimum penalties are reserved for serious, high-level, or violent drug
traffickers. In some cases, mandatory minimum and recidivist enhancement statutes have resulted in unduly harsh sentences and perceived or actual disparities that do not reflect our Principles of Federal Prosecution. Long sentences for low-level, non-violent drug offenses do not promote public safety, deterrence, and rehabilitation.

No longer, should prosecutors for the United States government prosecute the defendant to the full extent of the law, if doing so means activating a mandatory minimum penalty, without first applying specific guidelines that are intended to restrict and confine the exercise of prosecutorial discretion.

New Restraints on Prosecution of Drug Offenses that Carry Mandatory Minimums

Thus, a prosecutor should not allege a drug quantity that implicates a mandatory minimum prison sentence, if the case meets the following criteria:

• The defendant's relevant conduct does not involve the use of violence, or possession of a weapon
• The defendant is not an organizer, leader, manager or supervisor of others within a criminal
  organization;
• The defendant does not have significant ties to large-scale drug trafficking organizations,
  gangs, or cartels; and
  • The defendant does not have a significant criminal history (for example, under the guidelines and this Memo, a person with one felony conviction and one misdemeanor conviction, or three misdemeanor convictions, would not be deemed to have a significant criminal history).

While long overdue and falling short of what is needed, these and other significant changes in federal policy are beginning to help many criminal defendants gain early release from prison or obtain a sentence less draconion and cruel than what we saw during the heyday of the "War on Drugs" - the 1980s, 1990s, and beginning of the 2000s - when prosecutors throughout the country used drug laws in a racially-discriminatory, senseless manner that raised our overall prison population to over 2 million people and destroyed entire communities in the process.