Federal Prosecutors' Unchecked Power and Zeal Creates Prison Nation

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California’s four U.S. attorneys—Birotte, Benjamin Wagner, Melinda Haag, and Laura E. Duffy—have taken a slightly less draconian approach. Unlike Montana, they have warned targets, such as the landlord of Berkeley’s largest dispensary, to evict the dispensary or face property forfeiture proceedings—which are now underway. Birotte, arguably the most outspoken of the state’s federal prosecutors, said that the industry was growing too fast, making too much money and that wasn’t the same as helping the sick.

Drawing these legal lines are examples of prosecutorial discretion at play, Columbia Law School’s Richman said. “This is prosecutors being pushed to a legislative role. They are much more comfortable with taking direction from ‘main Justice’ [Washington].”

But the marijuana wars are escalating. In Colorado, which passed one of the country’s most liberal ballot initiatives last November, U.S. Attorney John Walsh has been going after dispensaries, and like in California, telling local pro-pot police officials that he’s turning his attention their way. “To be clear, this program is not at the direction of Washington, D.C.,” Walsh wrote to Boulder’s prosecutor, saying that he intended to shut dispensaries within 1,000 feet of public schools “at my direction as U.S. attorney.”

Like almost all federal prosecutions, most of the pot cases are not heard before judges or jury trials but instead are presented as guilty pleas where judges follow harsh federal sentencing guidelines. Drug law critics such as Families Against Mandatory Minimums note that "marijuana offenders are among the least likely of all drug offenders to receive a manadary minimum [sentence] for their offenses."

2. Overpunishment, especially among communities of color.

Overpunishment is not confined to drug cases. Immigration cases account for one-third of federal prosecutions. In 2012, 84 percent of these charges “involved illegally entering or remaining in the United States,” U.S. Sentencing Commission reported. “Another 9.8 percent involved alien smuggling.” More than 93 percent of defendants were men; 88 percent were Latino; and less than 82 percent entered high school. 

In these cases, federal prosecutors are not in the driver’s seat like pot cases, but akin to bureaucrats pushing paperwork through the prison treadmill, Richman said. Syracuse University, which has a clearinghouse tracking all federal prosecutions, agreed, saying, “Virtually all federal criminal prosecutions for immigration offenses in April 2013 were referred by the Department of Homeland Security” by two of its agencies: Customs and Border Patrol and Immigration and Customs Enforcement.   

Immigration policy and prosecutions are rife with injustice because of congressional "get-tough" attitudes and GOP-led opposition to paths to citizenship. One-fourth of the 8,000 or more immigration cases filed monthly by federal prosecutors are, predictably, along the Mexican border. Deputies working for U.S. attorneys Robert L. Pittman (West Texas), Kenneth Magidson (Southern Texas), Kenneth J. Gonzales (New Mexico) and Laura E. Duffy (Southern California) handle this caseload.  

Recent Obama administration efforts to soften immigration enforcement, such as creating new rules for raids that prevent agents from entering homes without permission, do not appear to offset the volume of immigration prosecutions. Obama has consistently had double the rate of prosecutions compared to George W. Bush’s administration.

The immigration prosecutions highlight another fact of federal prison policy: that almost 70 percent of all federal inmates are not white. Two-thirds are also younger than age 40. Another frequently overlooked aspect of a large young and non-white prison population is what happens to these inmates when they leave jail and try to reintegrate in society.

“The most salient issues for progressives are the number of people in jail, reintegration into society and the use of police tactics that impose too many costs on a community,” said Columbia Law School’s Richman.