In my last column, I panned the U.S. Justice Department’s memos that attempted to clarify its clarifications concerning marijuana enforcement in the states where the plant enjoys a legal framework. It seemed like business as usual. Arrest. Prosecution. Jail.

This column is a different matter. I laud Attorney General Eric Holder and the Obama Administration for steering the country in the right direction when it comes to mandatory minimum sentencing and consequent drug policy in general.

On August 12, 2013, AG Holder delivered remarks at the Annual Meeting of the American Bar Association, sounding more like Ethan Nadelmann of the Drug Policy Alliance than the top U.S. cop. The speech concerned mandatory minimum sentencing laws that require binding prison terms of defined lengths for individuals convicted of certain federal and state crimes.

Holder first asked for the ABA’s “partnership in forging a more just society.” He admitted that, “too many Americans go to too many prisons for far too long, and for no truly good law enforcement reason,” and went on to admonish that, “we, as a country, must resolve to do better … We will start by fundamentally rethinking the notion of mandatory minimum sentences for drug-related crimes.”

In 1951, Congress passed the Boggs Act, which contained mandatory minimum sentences for federal drug offenses with no parole or probation after the first offense. Although these sentences were repealed in 1970 because Congress concluded that they “had not shown the expected overall reduction in drug law violations,” they reemerged with the passage of the Sentencing Reform Act of 1984, which created the U.S. Sentencing Commission. It was charged with producing federal guidelines to ensure certainty of punishment and eliminate sentencing disparities, while thwarting “soft on crime” judges.

Two years later, Congress passed the Anti-Drug Abuse Act of 1986, which incorporated a tiered system of minimum sentences aimed at curbing the crack cocaine epidemic and assuaging fears that drug abuse spreads AIDS. Piling on even more quantity-based mandatory penalties, Congress enacted the Omnibus Anti-Drug Abuse Act of 1988, this time applying these penalties to the distribution of drugs regardless of the defendant’s direct involvement in the alleged crime. In essence, mandatory minimum sentencing removed a judge’s discretion to consider a range of other factors when sentencing the defendant.

The fallout from mandatory sentences has been staggering. As Holder correctly noted in his ABA speech, “While the entire U.S. population has increased by about a third since 1980, the federal prison population has grown at an astonishing rate – by almost 800 percent. It’s still growing – despite the fact that federal prisons are operating at nearly 40 percent above capacity. Even though this country comprises just 5 percent of the world’s population, we incarcerate almost a quarter of the world’s prisoners. More than 219,000 federal inmates are currently behind bars. Almost half of them are serving time for drug-related crimes.”

Under federal law, marijuana is classified as a Schedule I drug in the same class as heroin, and subject to many of the same harsh penalties scaled according to quantities. The federal penalty for a second marijuana possession offense includes a 15-day mandatory minimum prison sentence. Cultivation or distribution of 100 plants or 100 kilograms involves a five-year mandatory minimum penalty or ten-year minimum if the defendant has a prior felony drug conviction. Cultivation or distribution of 1,000 kilograms or 1,000 plants triggers a ten-year mandatory minimum, with a twenty-year mandatory sentence if the defendant has one prior felony drug conviction, and a life sentence with two prior felony drug convictions.

Indeed, the federal government has wielding the ax of mandatory minimums against marijuana in those states where the plant enjoys a legal framework. Earlier this year, Matthew R. Davis - a 34-year old California medical marijuana dispensary owner with an MBA – was indicted on federal charges of manufacturing marijuana. He pleaded guilty and entered into a plea agreement for a five-year mandatory prison sentence, even though his dispensary operated legally under California law. For similar legal acts, Los Angeles dispensary owner, Aaron Sandusky, received one of the harshest sentences – ten years – after declining a plea deal. That Montana voters legalized medical cannabis in 2004 didn’t thwart the federal prosecution of grower Chris Williams who began serving a five year mandatory minimum sentence in February. The federal judge in Williams’ case called mandatory minimum sentences “unfair and absurd.” The federal defense attorney pointed out that, “In the next decade, maybe there will be substantial changes in these laws in the nation … I think the change is in the offing.” AG Holder must have been listening.
In his remarks, Holder asserted, “we must declare that we will no longer settle for such an unjust and unsustainable status quo. To do so would be to betray our history, our shared commitment to justice, and the founding principles of our nation.”

That same day, the U.S. Justice Department announced that low level, non-violent drug offenders "who have no ties to large-scale organizations, gangs or cartels" would not be charged with offenses that impose stiff mandatory minimum sentences. Then, on Friday, September 19, 2013, Holder went even further. At a speech before the annual conference of the Congressional Black Caucus, he announced a new policy that ordered federal prosecutors to refile charges against defendants in pending cases and strip out any references to specific quantities of illicit substances that would trigger mandatory minimum sentencing laws. This policy will also apply retroactively to defendants who are already in the system, but have not yet been sentenced.
Perhaps this new policy does usher in a new day for those who will become involved in the robust systems for state-based marijuana distribution that will emerge as more states craft a legal framework. If Holder meant that we should no longer settle for an unjust status quo and resolve to do better, then not only will unfair and absurd mandatory minimum sentences be a thing of the past, Matthew R. Davis, Aaron Sandusky, Chris Williams and the scores of others like them will not face arrest, prosecution or jail in the first place. If this is so, then it is no longer business as usual at the U.S. Justice Department.