As the Obama administration draws to a close, officials at the Justice Department are busy commuting sentences of people convicted for drug offenses, especially crack cocaine. And, as Michael Pope reports, nowhere in the country has sentences for crack dealers as long as the Eastern District of Virginia.
After a cooperating witness helped bust Steven Webster’s client for dealing drugs with a gun in the parking lot of a restaurant back in 2012, federal prosecutors did something he wasn’t expecting. They tacked on a second charge, for a gun that was at his house, nowhere near the crime scene. Webster thought that was overkill.
“Really there was only one underlying drug charge and stacking the gun charges on top of each other with just that one underlying drug charge really ran afoul of the DOJ guidance in my estimation,” says Webster.
So he wrote a letter to the U.S. Attorney for the Eastern District of Virginia. He says the response was cordial, although prosecutors refused to back down. The result wasn’t good for his client.
“My client was convicted of both gun charges and the drug charge, however on a post-trial motion the judge did set aside that gun charge, which was a significant event for my client because it reduced his sentence very substantially,” says Webster.
What happened here is a common story in Virginia, where sentences for drug crimes far exceed sentences everywhere else. When the sentencing guidelines for dealing crack were changed a few years ago, the U.S. Sentencing Commission determined that the Eastern District of Virginia had more inmates eligible for reduced sentences than anywhere else in the country.
“Over the years, it’s had the reputation of being a place where you don’t want to be sentenced,” says Molly Gill, director of legal affairs at Families Against Mandatory Minimums. “Tough prosecutors who bring harsh charges, who go after the longest sentences they can get. Judges who are happy to give out those sentences.”
So how did the Eastern District of Virginia become the poster child for excessive sentences? One reason is many of the defendants chose to go to trial instead of taking a plea bargain, a gamble that often resulted in longer sentences when they were convicted.
Another possible reason is the international nature of Northern Virginia, often the headquarters for international criminal enterprises.
But perhaps the most glaring reason is Project Exile, a federal program that started in Richmond in 1997. It shifted prosecutions from the state courts to federal courts.
“It emphasized the prosecution of relatively low-level, often African-American defendants for firearm offenses and any related drug offenses and it imposed mandatory minimum sentences for possession of a gun in connection with a drug offense for five years,” says Geremy Kamens, the public defender for the Eastern District of Virginia.
Kamens says that hit many defendants with sentences that were much longer than they would have gotten if they had been tried in state courts.
“The vast number of people who were sentenced pursuant to these mandatory minimum sentences or to guidelines that were incredibly harsh didn’t deserve such incredibly harsh sentences,” he says.
But did these harsh sentences work? Molly Gill at Families Against Mandatory Minimums says no.
“So when we created these mandatory drug laws 30 years ago, it really wasn’t about science it was about fear and about politics. And 30 years later, we still have drug problems. So, no, they haven’t solved our problems,” Gill says.
But, others say those long sentences are entirely justified.
“Most of these repeat drug dealers, most of these dealers who are moving large amounts of product are involved in all of the other activities that one would assume drug dealers are involved in, which includes crimes of violence, which includes crimes of intimidation, which includes weapons charges,” says Virginia legal expert Rich Kelsey.
Marc Mauer is executive director at the Sentencing Project. Mauer says the idea that going after small-time criminals to catch big-time kingpins didn’t work.
“This rationale has not held up very well in terms of impact because we see decades after the War on Drugs ramped up, still very substantial numbers of low-level people being prosecuted and subjected in many cases to these harsh mandatory penalties.”
Obama and Democrats in Congress agreed. Six years ago, they passed a bill that reduced penalties for some drug crimes. But it was not made retroactive. That means many people are behind bars serving sentences that they wouldn’t receive today, like the 218 year sentence given to one defendant in the Eastern District back in 2004.
“The fact that we give out such enormous amounts of punishment and do it so frequently is really just one more indication of how out of control the period of tough-on-crime era was,” says Mauer.
Obama has commuted more sentences than the last eleven presidents combined, a move that’s not popular with some Republicans. President-elect Trump’s pick attorney general says Obama’s commutations are a disturbing power grab.
But, by the time Obama leaves office, the prison population will actually be lower than when he arrived.