Justice Department: You Don't Need Mandatory Prison Sentences To Put The Right Drug Criminals In Jail

WASHINGTON — The central argument against the sweeping changes to the war on drugs proposed by the Obama administration and others goes like this:

If you take away stringent mandatory minimum sentences for drug crimes, prosecutors can no longer use the fear of prison to flip drug criminals. If they can't flip drug criminals, they can't go after more powerful and dangerous drug criminals.

And if they can't go after those criminals, they can't hope to make a dent in the illegal drug trade.

This was the governing principle of the prosecutors fighting the war on drugs for decades. Just a year or so ago, under the direction of former Attorney General Eric Holder, prosecutors changed the way they charged some drug criminals, avoiding charges carrying mandatory minimums when possible. Some prosecutors worried they'd lose their ability to net the biggest fish.

Sally Quillian Yates, a career federal prosecutor now leading Obama administration efforts to reduce or eliminate mandatory minimum drug sentences on Capitol Hill, says the old system was all wrong, and she can prove it.

"There were some out there who were saying, and I understand this, 'We'll never get another defendant to cooperate with us, they're not going to plead guilty, they're not going to cooperate with us. We've lost our leverage, we won't be able to work our way up the ladder,'" Yates, the deputy attorney general, told BuzzFeed News. "But that's turned out just not to be true. In fact, the rate of guilty pleas has stayed exactly the same as it was prior to our new mandatory minimum policy and in fact the rate of cooperation is the same or has gone up slightly."

Yates has been saying for years that mandatory minimums — which don't apply in the vast majority of cases federal prosecutors coerce cooperation from all the time — aren't necessary to put high-level drug offenders behind bars. Now she's overseeing the process by which prosecutors move away from mandatory minimums, and she's one of the leading advocates in the administration push to eliminate mandatory minimums altogether in most cases.

It's a fundamental change to the way prosecutors think about their work when it comes to drug cases. Getting convictions without relying on mandatory minimums is a key legacy of Holder's term as Attorney General, and now it's a central part of Yates' argument to lawmakers that it's time to change the nation's sentencing laws.

As real momentum builds on Capitol Hill to rewrite sentencing laws with the goal of refocusing prosecution and lowering the prison population — an issue of prime importance to President Obama in the final months of his presidency — Yates is among the top administration aides helping the process along on Capitol Hill. She meets regularly with the members of the Senate in both parties attempting to hash out a bipartisan criminal justice compromise they can pass before the end of the year.

As that effort continues, Yates will continue to be among the most prominent administration faces pushing the Obama team position. On Wednesday, she'll speak at a bipartisan criminal justice policy summit that organizers hope will solidify momentum and help keep the ball rolling in Congress.

Yates has drawn the praise of advocacy groups who say she's able to connect with Republicans in a way the Justice Department often wasn't able to when Holder was in charge, due in part to GOP rhetoric that cast Holder as the biggest villain in the Obama administration.

Criminal justice is a top policy goal for Holder's successor, Loretta Lynch, and Yates also works closely with top department officials to help push unilateral changes to prosecution procedure set down first by Holder and now by Lynch. She also spends a lot of time talking to working prosecutors, the group that has expressed the greatest skepticism toward the sweeping changes pushed by criminal justice advocates and the administration.

"People get used to doing things a certain way. You ask folks to do something differently, there's naturally some discomfort with that among certain prosecutors, I think," she said. "So change is hard."

Yates knows how to speak their language. On paper, she is basically the prototypical tough-as-nails federal prosecutor.

During her career first as a deputy prosecutor and later as the first woman U.S. Attorney running the district based in Atlanta, Yates racked up big victories. She helped put the Atlanta Olympic Park bomber, Eric Rudolph, away for four consecutive life sentences and led prosecutions on nearly a dozen Atlanta officials on corruption charges in the mid-2000s, including Democratic mayor Bill Campbell. She led the successful prosecution of three Atlanta cops who killed 92 year-old Kathryn Johnson, who was black, in a so-called "no-knock" drug raid that mistakenly targeted her home. Basically, if you can imagine a prosecutor prosecuting it, Yates has done it.

In person, Yates has a lawyer's skill with phrasing, a southerner's chatty charm and a politician's penchant for caution. In an interview with BuzzFeed News in the Deputy Attorney General's sprawling WPA-era office suite in the Justice Department headquarters in Washington, Yates summoned all her powers to make sure to set expectations just right when asked how likely it is criminal justice legislation moves through Congress by the end of the year.

"Now I wouldn't say I'm confident," she said with a chuckle after a reporter suggested the word. "I would say I'm hopeful. Hopeful, hopeful. Not confident."

Yates' reserved optimism captures the current zeitgeist of the criminal justice moment. Red state efforts backed by a coalition of Koch-backed libertarians and prominent progressives like the ACLU have led to changes to nonviolent drug prosecutions that put an emphasis on drug treatment and anti-recidivism programs rather than lengthy and expensive prison sentences. In Washington, Obama has made criminal justice his next big policy push. Libertarian-leaning Republican lawmakers like Sen. Mike Lee of Utah, who have been pushing their party to adopt a criminal justice mindset like the one currently in play in GOP-controlled states like Georgia and Texas, have seen their efforts finally start to change minds among the establishment, tough-on-crime set.

The divide is now between so-called front-end advocates, who want changes to sentencing laws and penalties given to criminals when they first enter the system, and so-called back-end advocates who would rather leave sentencing alone and focus on parole eligibility and anti-recidivism programs.

The politics are simple, and crucial. Front-end changes are more risky, opening up politicians to attack ads saying they favored lower sentences for criminals and reduced penalties for drug dealers. The most ardent criminal justice advocates are pushing front-end changes. Back-end changes are an easier sell politically, but have much less impact on prison populations, according to advocates. They're usually the most favored solution by politicians who are still closely tied to the tough-on-crime model of criminal justice that produced mandatory minimums for drug crimes in the first place.

Negotiations between the sides in Congress are continuing apace, but it's Washington, and it's election season soon and optimism is not exactly ever in real abundance in the nation's capitol. The administration is pushing front-end changes, and Yates suggested whatever bill makes it through congress needs to include them.

"Certainly we want to incentivize those who are in prison to participate in prison programs that will reduce recidivism," she said. "But that doesn't mean that we don't have an obligation to have a fair and proportional sentencing system in place on the front end. And I believe that our current system needs some adjustment in that regard."

"It's really essential we pair any back-end reform with meaningful front-end reform," Yates said later.

Significant changes are needed to restore trust in federal prosecutors among some Americans, Yates said.

"It's really important to me that the public have confidence in their criminal justice system. We don't operate very well if the public doesn't trust us," she said. "And I think we've gotten to a point now where there is some distrust in whether the system is operating fairly. And so I think we have a real obligation to right that."

Yates has impressed both Republicans on the Hill with her interest in hearing their concerns and advocates around Washington with her ability to navigate the often polarized politics of the city with a deftness they say was not always on display before she took her current job in March. In a term that saw extremely partisan fights over Lynch's nomination, Yates was welcomed to the job by Republicans in the Senate: both of Georgia's Republican senators supported her nomination and other prominent Republicans in the Senate voted for her.

In the Senate, negotiators are debating all manner of ways to tweak the existing system. One goal is to separate the length of a drug sentence from the amount of drugs an offender is found with. This was the key metric in the tough-on-crime days of the 1980s and '90s, leading to press conferences with bags of drugs on the table, beaming prosecutors, and a lot of flashbulbs. Advocates say this led to many years of unfair, counterproductive sentences being doled out. Now, Yates and others say a focus on weight just means the courier who gets caught catches the sentence while the distributor who dispatched him or her catches a lower mandatory minimum if they're caught with a smaller volume of drugs.

"How do we rework the mandatory minimum system that we have now?" Yates said, describing the questions up for debate in closed door meetings across Washington these days. "Do we reduce the mandatory minimums? Do we reduce the amount of people who qualify for them? Do you add in other factors to determine if they qualify? All of those things are in the mix right now in terms of what is being discussed as possibilities."

Keeping the administration above the fray and out of a position that may alienate Republicans, while also pushing Obama's policy goals could be a tall order as things move forward. But the other part of Yates' job may be the toughest. She has to help turn the Department of Justice around on drug prosecutions, a process began by Holder and given equal priority by Lynch. It wasn't that long ago that prosecutors in the Department of Justice measured their success by the amount of time they heaped onto an offender, whether or not that offender was the biggest possible fish or a real danger to the safety of others.

Changes implemented by Holder as part of his smart on crime iniative — which guided prosecutors away from throwing the book at low-level nonviolent drug offenses — led to a reduction in prosecutions. Yates is now in charge of implementing the new approach. She says most prosecutors welcome the changes, but Obama's recent round of clemencies for nonviolent offenders sentenced under the old rules put into perspective how much of a culture change is still under way at the Justice Department.

"There are cases now that I see when I review clemency petitions and I see cases that were charged under different statutes, different laws at the time, and different policies [at the Justice Department] that certainly trouble me from a fairness perspective," she said. "The prosecutors who were involved, they were following the department policies that were in place at the time. And so I'm not suggesting they were doing anything improper or unethical. But our thinking has evolved on this. And it's time that our legislation evolved as well."

Yates says prosecutors are open to changes, and she's got the statistics to keep pushing those who are still skeptical. In the end she thinks the Justice Department will continue to make the changes it can to the way the war on drugs is fought even if Congress can't.

For Yates, the movement is a personal one.

"At the risk of sounding really corny now, I'm a career prosecutor. I've been doing this for a very long time. And I believe in holding people responsible when they violate the law," she said. "But our sole responsibility is to seek justice. And sometimes that means a very lengthy sentence, for people who are dangerous and from which society must be protected. But it always means seeking a proportional sentence. And that's what this sentencing reform is really about."