Sentencing plan gives judges more freedom

MARIETTA – Last month, U.S. Attorney General Eric Holder announced that prosecutors in the 94 U.S. Attorney’s offices would no longer charge low-level drug offenders under specifications that bump their charges up into mandatory minimum territory.

The policy, which would give federal judges greater freedom to consider the facts of a given case when issuing a sentence, has been met with favorable reactions.

Locally, many residents seem in favor of leaving judges options when it comes to sentencing.

“You can’t have a one size fits all method,” noted Marietta resident Laverne Bennett, 63.

Currently federal judges have little leeway when it comes to sentencing drug offenders. For example, a person convicted in federal court of possession of a kilogram of heroin (2.2 pounds) can be sentenced to no less than 10 years in prison.

Ignoring the specifics of a case makes no sense to Marietta resident Jacob Biehl, 33.

“I don’t have a problem with significant sentences for repeat offenders or high level criminals. The people that have no criminal record or no relations to organized crime, I am strongly against mandatory sentences. You can’t look at one the same as another,” he said.

In addition to leaving little discretionary room for judges, federal sentencing guidelines have long been vastly disproportionate to state sentencing guidelines for the same offense, said Washington County Prosecutor Jim Schneider.

“I thought some of the federal penalties for drug offenses are kind of extreme and too harsh to begin with. We are prosecuting the same type of crimes but the penalties are very different,” he said.

For example, someone charged on the state level for possessing that same one kilogram of heroin would be guilty of a first-degree felony, and an Ohio common pleas court judge would be able to sentence the offender to anywhere between three to 11 years in prison.

This means the maximum state penalty is almost on par with the bare minimum state penalty for the same offense.

Holder specifically cited first-time offenders with no connections to cartels or gangs as those he would like to see diverted into treatment programs rather than taking up space in the federal prison system.

However, even though first-time offenders are often low on the totem pole of a drug culture, they still are instrumental in furthering drug usage, said Marietta Police Capt. Jeff Waite.

“It all depends on how serious we want to get on drugs,” said Waite. “You’ve got to get rid of the demand before you can stop the supply and low level offenders are contributing to the same problem.”

According to Holder’s prepared remarks when speaking to the American Bar Association this month, more than 219,000 federal inmates are currently behind bars. Almost half of them are serving time for drug-related crimes.

Holder’s goal-to drastically reduce that federal prison population and hopefully save the government lots of money in the long run-is one that has already been addressed by several states’ legislatures.

In fact, Holder cited Ohio as one state in which “reinvestment and serious reform are improving public safety and saving precious resources.”

But there are major differences between Holder’s recommendation and a 2011 piece of Ohio legislation that essentially did away with prison sentences for fourth- and fifth-degree felony offenders.

For example, Ohio’s law did not open up sentencing options for judges. Rather the law took away some of their more serious options for sentencing low-level offenders, explained Washington County Common Pleas Court Judge Ed Lane.

“What they essentially did is make fourth- and fifth-degree felonies punishable as misdemeanor offenses, but they still come through common pleas court,” said Lane.

Holder cited a desire to enhance the use of diversion programs, such as treatment and community service initiatives, but those programs need to be funded in order for them to work, added Lane.

In Ohio, the state did not provide dedicated funding for treatment programs when they took away stricter sentencing options.

It is also possible that offenders would use any changes as a way to manipulate the system, added Schneider.

“It hasn’t taken long for the drug culture to realize (how to manipulate the Ohio laws), so they’re selling smaller quantities to people more often,” he said.

They also have a very high rate of recidivism when caught and prosecuted, noted Detective Ryan Huffman of the Marietta Police Department.

“A lot of the offenders are the same people that we arrested earlier, and a lot of them are on parole for the first crime they committed. We went to lighter sentences already and it’s not working,” he said.

Additionally, other changes in Ohio law have lowered the felony level under which crimes involving many serious drugs like heroin can be charged, Huffman said.

“It has made it harder for us to get those higher felony levels and it’s already harder to get prison sentences,” he said.

The mandatory minimums Holder is targeting are a result of the government’s “war on drugs,” which began in the 1980s.

Just because something has been in effect for a long time, does not mean it is effective, said Marietta resident Bernard Dye, 65.

“I think these decisions need to be left to our judges, not based on past practice,” said Dye.

Holder also questioned the effectiveness of the old policies, citing the massive growth of the prison population since the policies began.

Since 1980, the federal prison population has grown by almost 800 percent.

“As the so-called “war on drugs” enters its fifth decade, we need to ask whether it, and the approaches that comprise it, have been truly effective – and build on the Administration’s efforts…to usher in a new approach,” Holder said.