Attorney General Announces Change in Policy on Mandatory Minimum Sentencing for Controlled Substances; Dallas Drug Defense Lawyer Says Change is Positive Step

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At the annual American Bar Association meeting this month, U.S. Attorney General Eric Holder announced that the Department of Justice would not include the amount of drugs in indictments against certain low-level nonviolent drug offenders. Dallas federal drug defense attorney Richard McConathy said the changes are welcome, if late, and need to be made permanent by passing bipartisan legislation.

At this year's annual American Bar Association, held in August, U.S. Attorney General Eric Holder announced that the federal government would no longer seek mandatory minimum sentences for nonviolent drug offenders not connect to large-scale criminal organizations, cartels or gangs. Dallas federal drug defense lawyer Richard McConathy said the changes are long overdue and need to be made permanent through congressional action.

"The mandatory minimum sentences are draconian and commonly result in punishments that do not fit the crime," McConathy said. "Many small-time drug offenders have spent decades in prison for relatively small mistakes, and it's past time that our country stopped this practice."

In subsequent releases to the media, the Department of Justice explained that the changes will be implemented by Holder ordering federal prosecutors to no longer include the amounts of drugs in the indictment for certain offenders whose crimes did not involve violence and who are not connected to criminal organizations (The New York Times, "Justice Dept. Seeks to Curtail Stiff Drug Sentences," Aug. 12, 2013).

The amount is usually what triggers the mandatory minimum sentences. For instance, if convicted of possessing 28 grams or more of crack cocaine, more than 100 grams of heroin or five grams of pure meth with the intent to distribute, you will face a minimum sentence of five years.

If charged with involvement in any kind of drug ring or drug sale, the accused will face the same mandatory minimum sentence as if he or she was directly involved in the transaction, even if they did not know the amount of drugs involved.

For instance, a drug dealer arrives at his girlfriend's house and asks if she can hold on to a couple bags of cash. She puts them in her closet, and he takes them later. She knows he is a drug dealer, and believes the cash to be from a drug sale. She did not know that those bags of cash contained proceeds from the sale of two kilos of heroin. If charged, she would face a minimum of 10 years in prison under the current statutes.

The changes will hopefully be implemented to protect people like the girlfriend, as well as other drug offenders who simply made a mistake, McConathy said.

"As a defense attorney, I don't ever believe mandatory minimums are a good idea, because the court should have flexibility in dealing the particulars of each case," said the Dallas drug defense lawyer. "However, this is a step in the right direction."

The decision should be taken further by making the changes permanent, McConathy said. For this to happen, Congress needs to pass the Justice Safety Valve Act, bipartisan legislation sponsored by Sens. Patrick Leahy and Rand Paul. The bill would change the statutes for mandatory minimums to permanently implement many of the same policies.

"Since the changes were made by policy memorandum, the next attorney general could change the policies back with a stroke of a pen — even if Holder resigns and the Obama Administration appoints his replacement," McConathy said. "These positive changes need to be made law, and for that to happen, Congress must act."

Richard McConathy, of the Law Offices of Richard C. McConathy, is a Dallas criminal defense lawyer who represents those accused of drug crimes in federal and state court. He also represents those facing charges of DWI, sex crimes and any other criminal offense.

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Richard McConathy
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Law Offices of Richard C. McConathy
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