When U.S. Attorney General Eric Holder talked this week about “a fundamentally new approach” in which crimes federal prosecutors pursue and the sentences they seek, he outlined an approach that has been taking shape in the U.S. District Court for the Western District of Tennessee for several years.
“We must face the reality that, as it stands, our system is in too many respects broken,” Holder said Monday, Aug. 12, as he outlined the priorities in a speech to the American Bar Association’s annual convention in San Francisco.
“It’s clear … that too many Americans go to too many prisons for far too long, and for no truly good law enforcement reason. It’s clear, at a basic level, that 20th century criminal justice solutions are not adequate to overcome our 21st century challenges. And it is well past time to implement common sense changes that will foster safer communities from coast to coast.”
Holder’s “Smart on Crime” initiatives include the re-entry and drug court dockets already in use in the Western District of Tennessee to continue direct supervision by a judge of offenders after they serve their federal time.
“Diversion was something that was somewhat nonexistent,” said Ed Stanton, U.S. attorney for West Tennessee. “It’s been my policy that diversion should certainly be a tool to be considered when warranted.”
In keeping with the new directives from Holder that became public this week, Stanton said he will appoint an assistant U.S. attorney to oversee “re-entry and prevention” programs.
The major thrust of the initiatives is in the cases that prosecutors choose to bring in federal court, charges that can carry mandatory minimum sentences not only for violent offenders but for nonviolent offenders. It is those nonviolent offenders that Holder wants prosecutors to think more carefully about and use more discretion with.
“This means that federal prosecutors cannot – and should not – bring every case or charge every defendant who stands accused of violating federal law,” Holder said. “Some statutes that mandate inflexible sentences – regardless of the individual conduct at issue in a particular case – reduce the discretion available to prosecutors, judges and juries.”
Holder’s remarks and the new policies that come with it follow a 20-year arc in which federal laws have been extended to Congress to include prosecution of violent crimes from carjacking to murder for hire that were once almost the exclusive territory of state prosecutors.
On the line that separates violent felonies from nonviolent felonies is the charge of being a felon in possession of a gun. The cases are a common feature of the daily docket in Memphis federal court.
The aggressive pursuit of those charges on a federal level began as the Justice Department initiative “Project Safe Neighborhoods” in 2001 during the administration of President George W. Bush.
In Memphis federal court, over the last 12 years, those cases have come to include guns found on felons arrested again for nonviolent offenses as well as guns in the hands of violent career criminals.
In an unrelated case, U.S. District Judge Samuel “Hardy” Mays told a jury several years ago that he personally thinks the law is not a wise one. He made the point while instructing a jury on laws it was sworn to uphold as an example of a law they might personally disagree with but still had to uphold.
Stanton said he has already begun using more discretion in those cases.
“I’m looking for the worst of the worst as opposed to just any case dealing with a gun,” he said Monday after Holder’s speech. “There are certain circumstances, old felonies, nonviolent acts and actors – it really is a case by case basis. It’s my policy as it relates to the gun crimes that we’re looking for the worst of the worst.”
The gun cases are still reviewed on a weekly basis by a task force that includes state and local law enforcement and prosecutors.
“It’s not necessarily that they are getting by or getting away,” Stanton said of decisions made not to pursue firearms charges at the federal level against felons. “It’s making a deliberate and a measured decision as to who is the worst of the worst. And who does it makes sense to prosecute federally and on the state side.”