A directive from newly appointed US Attorney General Jeff Sessions instructing prosecutors to seek the most severe charges available threatens to stunt recent progress toward less federal prison time for low-level drug offenders in New Mexico, defense lawyers and drug policy reform advocates tell SFR.
"Drug mule" cases make up many of the drug crimes prosecuted in federal court in New Mexico, federal public defender John Butcher says. Some low-level drug runners who get caught mid-shipment are apprehended in Albuquerque, the first overnight stop on Amtrak's Southwest Chief train from Los Angeles to Chicago. Others are picked up throughout the federally designated "High Intensity Drug Trafficking Area," which runs east from Farmington down to Santa Fe and into Albuquerque before blanketing most of the southern border from Roswell on. The vast majority of federal drug charges in the state are for trafficking. Possession and brokering drug deals comprise a smaller percentage of crimes.
Drug mule cases, most often involving nonviolent and low-level drug offenders, were among those singled out in a memo issued by former attorney general Eric Holder in August 2013. It encouraged prosecutors not to charge such people with crimes that could trigger stiffer mandatory minimum sentences, which prevent judges from sentencing defendants to prison for fewer than a predetermined number of years. For example, since 1986, federal law has mandated that a person convicted of holding five kilograms of cocaine with intent to distribute be sentenced to a minimum of 10 years in prison for a first offense.
Holder asked prosecutors to back off. If somebody was arrested with five kilograms of cocaine, but was not an organizer, did not have deep ties to criminal groups and wasn't carrying a gun or another indicator of violent intent, prosecutors were asked not to charge that person with the quantity that would have triggered the 10 years. Data from the US Sentencing Commission suggests that some federal prosecutors in New Mexico may have heeded Holder's directive. It shows that the percentage of sentenced federal drug offenders who received mandatory minimums immediately dropped from 42 percent in 2013 to 25 percent in 2014, and even fell to 20 percent in 2015, the most recent year for which information is available. That's about half the figure from 2006, the first year the commission began tracking this data. The decrease came even as the number of people prosecuted for trafficking rose from an average of 586 between 2010 and 2012—before the Holder directive—and 646 between 2014 and 2016.
But Sessions has now directed prosecutors to reverse course. The new attorney general wants federal prosecutors to seek the most serious and readily provable charge against all defendants—regardless of circumstance.
"This is going to go after the low-level minimum participants with minor records, because they're the ones who were getting breaks [under Holder]," Butcher tells SFR. "Breaks" didn't mean that low-level runners weren't being charged or sentenced to prison after 2013, he says. But in some cases, they weren't getting the book thrown at them. Butcher suggests the new policy will have an outsized effect in New Mexico, with its relatively higher number of trafficking cases involving nonviolent offenders.
Under both the Holder and the Sessions memos, federal prosecutors have not been bound by law to exercise discretion either way in mandatory minimum cases; generally, US attorneys have the authority to determine how prosecutors in their districts handle them. For Molly Gill, a former prosecutor who is now the director of federal legislative affairs at Families Against Mandatory Minimums, that kind of concentrated power is a longstanding threat to the integrity of the US justice system.
"The most powerful person in the courtroom is not the judge, it's the prosecutor," says Gill. "Most people think it's the judge who decides your sentence, but in fact most of the time it's the prosecutor, especially if they use mandatory sentencing, because then they've become judge, jury and executioner."
The office of New Mexico Acting US Attorney James Tierney did not respond to SFR's inquiries as to how the Sessions memo will affect drug prosecutions in the state.
Emily Kaltenbach, who serves as both the senior director for the Drug Policy Alliance's criminal justice reform strategy as well as the organization's state director in New Mexico, fears the new memo will principally benefit the private prison industry.
"We have struggled with overdose rates for generations," she tells SFR. "And we know that overly punitive responses, which is what this is, will not result in less demand or sales of drugs." She points to Santa Fe's local drug diversion program as an example of a solution that is both compassionate and effective.
Since 2013, Santa Fe's Law Enforcement Assisted Diversion (LEAD) program, wherein police work with case managers and the local district attorney to enroll low-level offenders in treatment programs, has served as a national example for non-punitive approaches to drug use. District Attorney Marco Serna doesn't think there's much overlap between those who would qualify for LEAD and those who could be charged with a federal drug crime, but he acknowledges that the city's approach stands in contrast to Sessions' hardline.
"For nonviolent crimes, we have our own state and local statutes, and luckily I get to influence how we handle it in the first district," Serna says. "And we won't be taking that approach."