5 Years, or 20? How Sessions’ Get-Tough Order Would Extend Prison Stays

Jeff Session Get Tough Sentencing

Rosa Lozano, 50, at home in Los Angeles. In 2014 she was charged with importing methamphetamine and a judge sentenced her to almost four years in prison. Now she would most likely face a mandatory 10-year minimum sentence. (Emily Berl, New York Times)

The federal courts in San Diego are full of cases like this: a 22-year-old man caught driving a car loaded with 33 kilograms of hidden methamphetamine — worth hundreds of thousands of dollars — across the Mexican border into California.

So, what’s a fair punishment for this crime?

In the plainest reading of federal law, a kingpin-size haul like that would be punished with a kingpin-size sentence: from a minimum of 10 years in prison to life without parole.

But the drugs were not his — he said he thought he was smuggling marijuana — and there was no evidence that he played any role other than as a one-time courier. The man, Kevin Mejia, was poor and had a pregnant girlfriend, and he had been promised $1,000 to drive the car.

In 2013, Eric H. Holder Jr., the attorney general under President Barack Obama, told prosecutors not to use mandatory minimum sentences for defendants like this — low-level, nonviolent, no prior offenses to speak of.

In a memo, Mr. Holder even gave prosecutors a simple alternative: omit the weight of the drugs from the indictment, because mandatory minimums are triggered by quantity. Judges then would have considerable leeway in sentencing.

Under this guidance, the percentage of defendants who faced a mandatory minimum plummeted, while the number of prosecutions of more serious crimes, like those involving guns or cartel leaders, increased. The federal prison population declined. Crime stayed at record lows, with the exception of a few cities where gun violence and homicides spiraled upward.

Last week, however, President Trump’s attorney general, Jeff Sessions, did an about-face.

He issued his own memo, directing prosecutors to level the most serious charges with the longest possible sentences. Prosecutors must seek approval for any exceptions.

Sessions directed prosecutors to level the most serious charges with the longest possible sentences. Prosecutors must seek approval for any exceptions.

This policy, Mr. Sessions said, “is simply the right and moral thing to do.”

Mr. Mejia, who works full time as a solar panel installer and helps care for his infant son, awaits sentencing.

Here are three federal cases, all charged under the Holder memo, and how their sentences might be different if they were tried today.

The Addict

Lemuel Johns, 35, of Chicago

On July 7, 2008, Mr. Johns sold $3,000 worth of crack, or 127 grams, to his girlfriend, who turned him in because she believed he was cheating on her, his lawyer said. Mr. Johns was an addict who began using crack at age 13, after the death of his mother left him homeless and, effectively, an orphan. He had several run-ins with the law, and at the time of his federal indictment Mr. Johns was serving time in state prison for his most serious crime, aggravated battery and harming a peace officer. He had requested and completed a drug addiction program in prison.

Under the Holder memo, Mr. Johns was charged with two counts of using the telephone to arrange the crack sale, each of which carries a maximum sentence of four years with no mandatory minimum.

The judge sentenced him to five years.

If the Sessions memo had been in effect at the time, Mr. Johns could have been charged with distribution of 127 grams of crack, which carried a mandatory minimum sentence of 10 years.

Using a prior drug-related conviction, by then over a decade old, prosecutors could have doubled that, requiring the judge to impose a minimum sentence of 20 years — quadruple his sentence.

Because of adjustments to the law to bring crack sentences more in line with those for powder cocaine, if Mr. Johns committed the same offense today, under the Sessions memo he could face a mandatory minimum of 10 years.

The Courier

Rosa Lozano, 50, of Los Angeles

On Jan. 23, 2014, Ms. Lozano tried to cross the border from Mexico to California in a 2007 Chevy Cobalt. Hidden in the doors was 17 kilos of methamphetamine. Decades before, Ms. Lozano had become addicted to meth while in an abusive marriage. More recently, her boyfriend had been deported and was pressuring her for money. A neuropsychologist who evaluated her said she had major depressive disorder, stimulant dependence and dependent personality disorder. She told authorities she was to be paid $3,500 for smuggling the meth.

Under the Holder memo, she was charged with importing meth and a judge sentenced her to almost four years in prison. While incarcerated, she completed an intensive drug treatment program, which entitled her to an early release.

Under the Sessions memo, Ms. Lozano could have been charged with importing 17 kilos of meth, which carries a mandatory 10-year minimum sentence, more than three times as long as the time she served.

The Friend

Abel Garcia Jr., 43, of Chicago

On April 4, 2011, Mr. Garcia got a call from an old friend who needed a place to stay. Mr. Garcia took him, along with another man, to a home owned by his father. Once there, they asked if Mr. Garcia could store more than four kilograms of cocaine, and he agreed. The next day, agents with the Drug Enforcement Administration, who had been tracking the drugs from Texas, searched the house.

Mr. Garcia had no prior felonies and only one prior offense involving drugs: possession of marijuana. His lawyer argued for leniency, saying that he was a working father of two and a primary caregiver to his older son, who has autism. While awaiting trial, Mr. Garcia spent five months in jail and one and a half years wearing an ankle monitor, during which time he worked and earned a high school equivalency degree.

Under the Holder memo, Mr. Garcia was charged with conspiracy with intent to distribute, and the judge sentenced him to 21 months. When Mr. Garcia was released, he was able to reclaim his job as an auto repair service manager.

Under the Sessions memo, Mr. Garcia would most likely have been charged with possession with intent to distribute more than half a kilo of cocaine and served a minimum of five years in prison, more than double his sentence.

Shaila Dewan
New York Times

Shaila Dewan is a national correspondent covering criminal justice issues, including the effects of low-level criminal charges on indigent defendants.

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