Room for prison reform?

Since the 1980s, when Congress passed mandatory minimum sentences for drug crimes, federal prison populations have swelled. Of some 219,000 current federal prisoners, nearly half involved drug-related crimes, offenses that ran the gamut of severity but received little judicial leeway in sentencing. Such rigidity in punishment contrasts starkly against the range of case-by-case circumstances — but such is the law of the land.

That’s why when U.S. Attorney General Eric Holder last month announced a policy change aimed at keeping low-level, nonviolent drug offenders with no gang or drug- cartel ties out of federal prisons, it signaled a sea change from a decades-long "war on drugs" mentality. It’s a mentality that’s been increasingly criticized as Draconian, racially discriminatory and cost-ineffective.

"The hope is that legislators at the state level will get the message, the gist of what Holder is saying," said Pamela Lichty of the Drug Policy Forum of Hawaii. "I think that actually has been very slow to pick up, some of the kinds of reforms that Holder was talking about."

Even as federal attorneys in Hawaii and the rest of the country are being told via the Holder memo to scale back mandatory minimum sentences of drug offenders, defense attorneys are anxiously awaiting the change.

"A pretty high percentage of our cases are drug-related cases," said federal Public Defender Peter Wolff Jr., "and since methamphetamine is a big drug in Hawaii, a lot of those cases involve mandatory minimum (sentences)."

Honolulu private defense attorney Bill Harrison said he has "two clients that probably would be poster clients for the Eric Holder memo and we’ll see what happens" when the Hawaii U.S. Attorney’s Office files charges against them.

Hawaii’s U.S. Attorney Florence T. Nakakuni, however, foresees little if any change in Hawaii federal drug charges and sentences, where most cases consist of big-time dealing of large amounts of methamphetamine.

"We’re doing what the AG (Holder) has suggested," Nakakuni said. "We do not prosecute low-level, small-time drug dealers, and we certainly don’t prosecute people who are merely drug users and not dealing. Those cases don’t come to us. I have limited resources and we don’t do that."

Instead, she said, all the drug-offense cases that have been filed for years in Hawaii have concentrated on organizations that bring in pounds of meth to the islands. While she briefed her staff attorneys recently about the Holder memo sent to all U.S. attorneys, Nakakuni said, "a lot of the things he says just don’t apply to us."

More than 100 drug cases a year are sent to federal court in Honolulu, amounting to more than half of the entire criminal agenda, Nakakuni explained. Up to 95 percent of those cases involve meth. In mainland districts, she said, no more than 30 percent of drug cases involve meth. Nationally, meth accounts for only 18 percent of drug cases because the "drug of choice" on the East Coast is crack cocaine.

Strict federal and state sentencing laws have taken hold since a palpable increase in violent crimes in the 1970s; that has resulted in 1.57 million Americans in state and federal prisons. Such "tough on crime" laws, however, have left prisons woefully overcrowded and have been increasingly criticized.

As Holder said: "A vicious cycle of poverty, criminality and incarceration traps too many Americans and weakens too many communities. And many aspects of the criminal justice system may actually exacerbate these problems."

"The nation’s shameful policy of packing people into prisons to serve long sentences for relatively minor crimes wandered outside the limits of sanity a long time ago," opined the Kansas City Star recently, whose home state passed a 2003 landmark law requiring community-based supervision and treatment instead of prison for nonviolent offenders convicted of simple drug possession.

In his speech last month to the American Bar Association, Holder praised Hawaii as being among states where "reinvestment and serious reform" is occurring without compromising public safety, apparently referring to Project HOPE, state Circuit Judge Steven Alm’s program involving probation for eligible drug offenders.

Also, when Hawaii’s Legislature last year passed the omnibus Justice Reinvestment Initiative, one key emphasis was on easing probation thresholds and providing drug treatment instead of incarceration, when warranted.

In federal courts, a "safety valve" sentencing system was approved by Congress in 1994, allowing an offender to qualify for a minimum sentence by having violated no more than one of five factors: No one was harmed and the offender had no previous convictions, didn’t use violence or a gun, was not a supervisor or organizer of the offense, and told the prosecutor all he or she knew about the offense.

That list of conditions has backfired on those who don’t meet them and "is kind of strict," Wolff said. "A lot of guys who are relatively not that serious defendants can’t qualify for the safety valve because they have more than one criminal history point."

That happens easily, he said, "if you have any interaction with the criminal justice system because you get a point for like a DUI, but you can also get a point for not having finished the alcohol class by the time you’re committing the federal offense, so that’s a point, even though you were on fairly nominal, and really theoretical, supervision. So those two points would disqualify you from the safety valve."

As Wolff sees it, "You don’t have to be much of a supervisor to be found to have a supervisor role. If you direct one other person, that’s probably enough.

"I don’t think we’ve seen anything yet, but we’re hopeful."

Leniency, though, is hardly applicable in cases involving methamphetamine, which involves numerous offenders in a single case, thus sentencing based on membership or gang leader in organized crime.

"Virtually all of them have multiple defendants," Nakakuni said of such cases, "because it takes a group to bring the stuff in, rarely one person picking up the meth in Mexico, bringing it across the border, putting it in a mail box or sending it by FedEx."

While Holder’s "fundamentally new approach" in federal prosecution is generating much buzz in aiming for shorter prison terms for lower-level drug offenders, Nakakuni essentially regards most, if not all, such cases in Hawaii’s federal court as higher-level. So it remains to be seen how this law-enforcement signal from the federal top trickles down to the states.

As Kat Brady, of Hawaii’s Community Alliance on Prisons, noted with some skepticism, Holder’s memo "is kind of a suggestion that’s not really a mandate."