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Feds fear change in drug-crime sentencing could hamper investigations

United States Attorney Gen. Eric Holder speaks American Bar AssociatiAnnual meeting Monday Aug. 12 2013 San Francisco. In remarks associatiHolder

United States Attorney Gen. Eric Holder speaks to the American Bar Association Annual meeting Monday, Aug. 12, 2013, in San Francisco. In remarks to the association, Holder said the Obama administration is calling for major changes to the nation's criminal justice system that would cut back the use of harsh sentences for certain drug-related crimes. (AP Photo/Eric Risberg)

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Updated: September 14, 2013 6:21AM

U.S. Attorney General Eric Holder announced Monday that nonviolent drug offenders will no longer face mandatory federal prison terms — a major change in policy that some law enforcement officials fear will make it harder to get such defendants to confess and give up information on higher-level targets.

Holder said low-level, nonviolent drug offenders without ties to gangs or cartels will no longer be charged with offenses that impose “draconian” mandatory minimum sentences.

“Too many Americans go to too many prisons for far too long and for no truly good law enforcement reason,” Holder said.

The federal prison population has grown 800 percent since 1980 and nearly half those inmates are serving drug sentences, Holder noted.

Nationwide, about two-thirds of the nearly 24,000 federal drug offenders in fiscal year 2010 were convicted of an offense carrying a mandatory minimum sentence, according to the U.S. Sentencing Commission. Low-level couriers represented about 20 percent of the cocaine offenders.

Mayor Rahm Emanuel praised Holder and President Barack Obama for the new policy, saying nonviolent offenders are often better served by treatment and other options besides prison.

“These fairer sentencing guidelines must be coupled with consistent and meaningful punishment for those who commit the most violent crimes, which is why I continue to advocate for a three-year mandatory minimum for serious gun crimes,” he said.

But some federal law enforcement officials, speaking on condition of anonymity, said the policy might result in fewer low-level drug offenders cooperating with investigators early on in a case.

Until now, those defendants faced a mandatory minimum federal sentence of 10 years in prison for conspiracy to sell more than a kilogram of heroin. Prosecutors were able to ask the court to double the sentence to 20 years if the defendant had a prior felony drug conviction.

But drug defendants with no criminal backgrounds also were offered “safety-valve” interviews in which they were given the chance to cooperate in exchange for not facing a mandatory minimum federal prison term. Typically, they were low-level players in a drug operation, such as couriers.

Safety-valve interviews have been useful in providing investigative leads and allowing authorities to check the accuracy of witness statements. Without the threat of a long prison term, though, those defendants might not have the incentive to confess early — or give up information about their criminal associates.

“Those cooperators are key,” one federal law enforcement official said. “Many larger cases start with smaller cases.”

The U.S. Attorney’s office in Chicago was studying the policy shift Monday. Holder announced the change in a speech at the American Bar Association’s annual meeting in San Francisco. In the speech, he pointed to a report that said black men receive longer sentences than whites for the same offenses.

“This isn’t just unacceptable, it’s shameful,” Holder said, adding that he directed a panel of federal prosecutors to study those sentencing disparities and make recommendations to address them.

Harold Pollack, a director of the University of Chicago Crime Lab, hailed the new policy.

“We need to be more focused on people who are committing violence and threatening public safety,” Pollack said.

Older drug defendants typically get hammered with heavier sentences even though they generally pose less of a risk of violence than their younger counterparts, Pollack said.

Holder said he’s authorized the “compassionate release” of elderly drug offenders who didn’t commit violent offenses and have served most of their sentences.

Kent Carlson, a 30-year criminal defense attorney whose work is mainly in the federal court system, said the previous mandatory drug sentencing rules were unfair.

“There are far too many people who don’t deserve to be sentenced to mandatory minimums,” he said.

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