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Bar News - July 16, 2014

Federal Practice & Bankruptcy: Let’s Not Necessarily Make a Federal Case of It


Changes and Priorities in New Hampshire
By John P. Kacavas

Here in New Hampshire, we implemented the “Smart on Crime” initiative by literally upending our prosecution priorities to reflect what I believe to be quintessential federal law enforcement interests.

So, federal prosecutors in my office will focus on the following categories of cases, in order of priority:
•Protecting our citizens from potential threats to public safety posed by international and domestic terrorism suspects, home-grown violent extremists, and cybercriminals;
•Protecting children from sexual exploitation and prosecuting individuals who manufacture, distribute and possess child pornography, as well as those who seek to entice children online for sexual purposes or prostitution;
•Protecting our citizens from fraud and restoring stolen funds to victims and the American taxpayer by prosecuting the perpetrators of a wide variety of fraudulent conduct, including securities fraud, corporate fraud, bankruptcy fraud, tax fraud and federal benefits fraud;
•Protecting our citizens from violent crime – like robbery and firearms offenses; and
•Protecting our citizens from the dangers of illicit drugs by identifying the most serious offenders who are suitable for federal prosecution.
Our shifting priorities are taking root, as reflected in several metrics. For example, in 2012, drug offenses accounted for 39 percent of all federal prosecutions in New Hampshire – down from 63 percent in 1997. We increased by six times the number of child pornography offenses prosecuted, by four times the number of firearms offenses prosecuted, and by two times the number of fraud offenses prosecuted during that same period (?).

To advance these positive trends – and to shift the paradigm away from a system of punitive justice toward a more restorative model – prevention, treatment, and reentry are critical components of the smart-on-crime approach.

Federal prosecutors must become soldiers in a new kind of war – one that takes real courage to fight. It is easy to be “tough on crime,” to pander to people’s fear and ignorance, to marginalize misdemeanants and felons caught in a system of mass incarceration. It is much harder to be “smart on crime,” to appeal to reason and fairness, to offer a hand instead of a clenched fist, to speak out against powerful interests that only seek to perpetuate the status quo. But that is what we must do in order to achieve real justice and true equality under the rule of law.
In August 2013, United States Attorney General Eric Holder formally launched his “Smart on Crime” initiative, the overarching goal of which is nothing less than the reformation of our federal criminal justice system.

The initiative is based on five principles: 1) prioritizing federal prosecutions to focus on the most serious cases; 2) reforming sentencing to eliminate unfair disparities and seeking sentences that are proportional to the underlying criminal conduct; 3) moving away from our system of mass incarceration and pursuing alternatives to incarceration for low-level, nonviolent crimes; 4) bolstering prevention and reentry programs to deter crime and reduce recidivism; and 5) protecting especially vulnerable populations.

The impetus for this initiative was the failure of our system of mass incarceration to prevent crime, reduce recidivism, and redress unfair disparities in the execution of our federal criminal laws.

Today, there are more than 2.2 million adults incarcerated in federal or state prisons and local jails, which amounts to an incarceration rate of 1 in every 108 adults in this country. And minority groups represent a disproportionate share of this incarcerated population. In 2012 – the last year for which final data are available – black males were at least four times more likely to be imprisoned than white males; black females were at least two times more likely to be imprisoned than white females; and Hispanic males were at least two-and-a-half times more likely to be imprisoned than white males. These statistics span all age groups.

The National Research Council recently released a report titled, “The Growth of Incarceration in the United States,” which makes plain that this disproportionate mass incarceration is largely attributable to the “War on Drugs” declared more than 30 years ago. The correlation is no coincidence and it could not be more evident.

Between 1978 and 2009, the number of prisoners held in federal and state facilities increased nearly 430 percent. In 1980, there were 19,000 sentenced prisoners in the federal prison system, less than one quarter of whom were drug offenders; by 2012, there were 196,574 sentenced prisoners in the federal prison system, more than half of whom were drug offenders.

The causes of this massive increase in the number of sentenced drug offenders are many and varied, but none is more significant than the federalization of criminal drug laws. The Anti-Drug Abuse Act of 1986 marks the beginning of a sweeping usurpation by the federal government of a category of crime traditionally left to state and local law enforcement.

Among other things, that federal law imposed different minimum mandatory sentences for drug offenses based on the type and quantity of drug involved. And it established a 100:1 ratio for the possession of powder versus crack cocaine. So, for example, a minimum mandatory sentence of five years could be imposed for possession of 500 grams of powder cocaine, yet that same five-year minimum mandatory sentence could be imposed for possession of only 5 grams of crack. This disparity fell like an anvil on black males in the 18-39 age group, whose rate of imprisonment was six times that of white males in the same demographic.

Like every other state, New Hampshire became an active battlefield in that War on Drugs. In 1997, for example, drug offenses accounted for 39 percent of all federal prosecutions nationally; in New Hampshire, that same year, drug offenses accounted for 62 percent of all federal prosecutions.

Presaging his Smart on Crime initiative, Attorney General Holder’s first order of business was to address the 100:1 powder versus crack cocaine ratio and its disparate impact on sentenced drug offenders. The Justice Department worked closely with Congress and, in 2010, President Barack Obama signed the Fair Sentencing Act, reducing the 100:1 ratio to what is today roughly an 18:1 ratio. So now, for example, the five-year mandatory minimum sentence is triggered by possession of 28 grams of crack, not 5 grams.

In 2010, the Attorney General issued a memorandum to federal prosecutors, which, among other things, gave us wider latitude in making charging decisions. The “Holder Memo” rescinded prior Justice Department charging policies and revived prosecutorial discretion, giving federal prosecutors the ability to eschew charges that implicate draconian minimum mandatory sentences for low-level, non-violent drug offenders.

The Holder Memo was a harbinger of the “Smart on Crime” approach, beginning a gradual but steady shift in federal law enforcement priorities. So, instead of waging a fruitless war on drugs using the blunt weapon of mass incarceration, we will be smart on crime, using discretion in seeking minimum mandatory sentences, ensuring that punishments fit crimes, investing in prevention, alternatives to incarceration, and reentry programs – all of which is to say that instead of a system of punitive justice, we aim for a system of restorative justice.

John P. Kacavas is the United States Attorney for the District of New Hampshire.

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