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May 18, 2014

Identifying better DOJ prosecutorial priorities than low-level drug crimes

Perhaps the main reason I am a supporter of the Smarter Sentencing Act is my desire to have Congress send an important message about federal criminal justice priorities to the US Justice Department and others through a relatively modest revision of existing mandatory minimum sentencing provisions.  Notably, the preamble to the SSA makes express mention of this goal, describing the purpose of the Act as designed to "focus limited Federal resources on the most serious offenders."  By reducing (though not eliminating) mandatory minimums for various drug crimes, Congress would be effectively saying that federal prosecutors ought not prioritize federal prosecutions of first offenders who may have been involved in dealing only a few ounces of crack or meth or heroin.

Critically, under current law and after the SSA were to become law, if and whenever a drug offender has even a single prior drug offense or just possesses a firearm or causes any significant bodily harm, additional heightened mandatory sentences kick in.  Thus, the only drug dealers likely to benefit significantly from the SSA are true first-offenders who deal only a few ounces of crack or meth or heroin.  I feel confident that major dealers, repeat dealers, and those who use or threaten violence will still be a priority for federal prosecutors after passage of the SSA, and that the feds will still have plenty of prosecutorial tools to take down serious drug traffickers.  And by making sure that lengthy prison terms are mandated only for the most serious offenders, federal prosecutorial and corrections resources can and should be better focused on other crimes, especially crimes that only federal prosecutors can effectively and efficiently prosecute.

What kinds of other crimes, you might ask, would I want federal prosecutors to prioritize over going after first offenders involved in dealing only a few ounces of crack or meth or heroin?  Helpfully, old pal (and forner federal prosecutor) Bill Otis in a pair of new posts over at Crime & Consequences identifies two classes of federal fraud and corruption that ought to be a signal concern for federal prosecutors. Here I will provide links and highlights from these two posts:

A New Prosecution Priority for DOJ: "The lead story in the Washington Post today reports that possibly a million applicants for Obamacare subsidies may have 'misstated' their income.... DOJ should not allow something like that to happen again.  Whether one loves Obamacare or hates it, no one has the right to bilk it by cheating.   A few hundred highly publicized false statement prosecutions would go a long way toward keeping applicants honest and, therefore, keeping the program as solvent as it's going to get."
Another Prosecution Priority for DOJ:  "My last post suggested that the Justice Department prosecute at least some of the thousands of Obamacare applicants who have intentionally falsified statements of their income in order to bilk the taxpayers for even more than they're being bilked out of already.  There is second priority I would suggest for DOJ examination -- a priority that, it seems, the Department may have taken up.  As the New York Times reports: 'The Department of Veterans Affairs' inspector general is working with federal prosecutors who are trying to determine whether criminal violations occurred at a medical center in Phoenix accused of falsifying data or creating secret waiting lists intended to hide months long delays for veterans to see doctors, a top official told a Senate committee on Thursday.'"

I suspect Bill would be quick to assert that the federal government in general and DOJ in particular has plenty of resources to keep going after all drug offenders and to now start going after Obamacare cheats and federal executive branch liars.  Though it is surely true that federal prosecutions are not a zero-sum game, the fact remains that the sentencing laws on the books necessarily serve to structure and greatly influence the exercise of prosecutorial discretion for this Administration and others.  Plus, state prosecutors can (and still do) go after low-level (and high-level) drug dealers, whereas state prosecutors cannot go after after Obamacare cheats and federal executive branch liars.

In short, I heartily endorse Bill's suggestion that AG Holder and his prosecutorial agents start going after Obamacare cheats and federal executive branch liars.  And that endorsement of DOJ prosecutorial priorities provides an additional reason for my support of the SSA and its effort to reorient federal prosecutorial priorities accordingly.

Some prior posts about the SSA and debates over federal sentencing reform:

May 18, 2014 at 11:37 AM | Permalink


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Let the DOJ and the federal cops direct some attention on fraudsters who rip off the so called "food stamp" system. Then they can go to disability cheats.

Posted by: Liberty1st | May 18, 2014 11:47:35 AM

More examples of where a little more attention to small fry federal fraudsters likely would have a much bigger bang for the buck than going after small fry drug dealers. Plus, only the Feds can go after the small fry federal fraud folks.

Posted by: Doug B. | May 18, 2014 12:14:08 PM

I personally have more sense of justice being served if we could jail some of the million or so fraudsters rather than the dopers. When I was a kid we had a system where the government gave out actual food to the presumed needy. Then my own Congresswoman named Leanore Sullivan (sp) invented the food stamp program. It opened the floodgates. I know a guy who is 40 who works fifty hours a week repairing boats and yet he draws disability from social security and food stamps from some program. His live-in girlfriend has a similar gig. Lets just say that they eat well.

Posted by: Liberty1st | May 18, 2014 1:42:20 PM

Excuse me. The Food Stamp program was not designed to feed the poor. Their biggest nutritional problem is obesity. They need Jenny Craig, not free food. Docs are OK with that too, because obesity leads to diabetes, a chronic condition that requires a lot of medical care, and can kill only after decades of expensive care. No doc will oppose the Food Stamp program, as a public health menace to diabetes control. Here, a gift card for Cheetohs, got to town. Stuff it while playing on your X-Box, in Compton

From the lib Diabetes Association. The poor are the fattest group in the country (middle of the article).


No. The Food Stamp program was designed to subsidize farmers, especially big corporate farms, who hired big time corporate lobbyists. For big lobbying fees, you get the masking lying ideology of feeding the starving poor.

Where are we, here? Fifth grade Social Studies class?

Little fish generate easy wins for the prosecutor tally, and further the career prospect as future defense lawyer for the rich, the few.

Posted by: Supremacy Claus | May 18, 2014 2:13:10 PM

Something for the lawyer to chew on.

The food stamp contributed to obesity in the poor. As a result, they are too fat to commit street crimes, a benefit if small time fraudsters are eating a lot. As a result there is now lawyer unemployment. The lawyer should put the priority of going after big Food Stamp fraud, such as that by stores. If a store submits false food stamp bills, no poor person has eaten food. Thus the fraud defeats the aim of the program, farm subsidy.

That big Food Stamp fraud should become a high priority.

Posted by: Supremacy Claus | May 18, 2014 2:26:18 PM

Supremacy Claus is partially right that food stamps was designed to be a farm subsidy program, in the same way the free cheese was designed to be a dairy subsidy program. But it's wrong to imply, however, that food stamps have had only a negative impact on the poor. Obesity is a problem but it has little to do with food stamps and more to do with nutritional education. A little known fact is that one can actually go to a greenhouse and purchase plants and seeds for a garden with food stamps. Only a miniscule minority of people actually do buy seeds with foods stamps but it is possible.

In my view the biggest problem with healthy eating with food stamps is that healthy food costs more, generally speaking. And as soon as the poor buy a healthy food--like lobster--the press starts screeching about lazy asses living high off the tax payer. This, or course, is totally short sighted. The government is going to pay either way--either its going to pay in quality food upfront of its going to pay in medical care out the back end. Name your poison.

Anyway, one topic. I doubt seriously that DoJ is going to fill prisons with Obamacare cheats. In fact, it makes no financial sense. Society is going to arrest someone for getting free food and medical and then stick them in a cell where they will get free food and medical care? That's ludicrous.

Posted by: Daniel | May 18, 2014 2:38:49 PM

Daniel. Healthy foods do not taste good, unhealthy foods do. We are programmed by 100,000 years of starvation on the African plains, to go for the best tasting and the most food possible when available. Food stamps increase the availability of food. Indeed, that was the masking ideology when enacted, feed the starving poor. In the 1950's, the poor were thin. Food stamps has been an outstanding success. The poor are now fat.

That period of drought in Africa also forced pre-humans to stand up when walking to see more, and to find more food farther away. It made us omnivores, unlike our vegetarian simian cousins. Those innate tendencies will not be changed until genetic engineering can find a way.

Can we agree that going after stores submitting $millions in false claims is a better idea, although harder to do, than going after some addict trading food stamps for drugs on video recording?

Just got hungry again. Going for a Bar-B-Q sandwich. Good talking with you.

Posted by: Supremacy Claus | May 18, 2014 3:06:38 PM

Daniel, one of many reasons to go after fraudsters is that punishments other than prison might be effective and efficient. Garnish wages and use other means (shaming punishments) to go after those who bilk the government rather than give them prison time.

Posted by: Doug B. | May 18, 2014 3:48:35 PM

You want feds to go after fraudsters of government programs? They already do, and you know what kinds of sentences they get? Probation. Sometimes they pay back the money, but most of the time they don't. I've seen a judge tell a prosecutor that she should be "ashamed" of herself for taking away someone's social security benefits to offset that person's theft of social security when younger. It was mandated by law that the offset occur.

Posted by: domino | May 18, 2014 3:56:51 PM

Since when does the legislative branch get to tell the executive branch where it's priorities should be? That is left to the people when they elect the head of the executive branch, the President.

Posted by: domino | May 18, 2014 3:59:32 PM


Because it is never cost effective to prosecute these type of petty cases. By the time one adds up investigative resources, prosecutorial resources, judicial resources, and post-conviction resources the amount spent on the total prosecution often is double or triple the initial loss. It's throwing good money after bad. Private debt collection is an illustrative example. Most debt collectors won't go to trial on a debt that is less than 30K and many won't do it for less than 50K. They want their summary judgement or they drop the collection. Why? Because full blown trials are expensive and there is no way they will ever recoup the legal expense. It's simple math. Debt sells for ten cents on the dollars on the market so a 30K consumer debt is worth 3K so unless he can pay less than 3K in total collection costs the debt collector loses. And debt collectors don't have to account for many of the same costs the government does--judicial resources are externalities to the debt collector; the are not externalities to the taxpayer.

The basic fact is that when it comes to petty fraud the best answer is to simply do nothing at all. Society has better things to spend its money on than prosecuting someone who is pretending to earn 10K less than they really do so they can get a break on their health insurance on an exchange.

Posted by: Daniel | May 18, 2014 5:15:57 PM

(1) Probation means for fraudsters means they can get a job and pay. (2) Your statement: "Sometimes they pay back the money, but most of the time they don't." is not true. Every USAO has a Financial Litigation Unit aka "FLU". They are pernicious. You don't pay well let's intercept your federal tax refund. You don't pay let's do a judgment debtor examination. You don't pay let's do a wage garnishment. The statute of limitations for collecting restitution is 20-years. The FLU's I've dealt with are relentless--you don't want to be on the receiving end. Fraudsters pay one way or another.

Posted by: ? | May 18, 2014 9:00:13 PM

As to the allegations of fraud by people applying for the Obamacare premium subsidies, this is just another example of the use of dog-whistle BS to demonize regular people to distract from the total lack of interest and effort to pursue frauds committed by elites in the mortgage securitization scams.

Of course, regular people who commit frauds should not get a pass.

But neither should elites who wrecked the housing market, thereby causing the Great Recession, who wrecked the land recording system where the title to every piece of land that has had a mortgage securitized is clouded, and who made millions in the process, get a pass.

Too big to jail?

Posted by: Fred | May 18, 2014 10:46:19 PM

It doesnt matter if obamacare recipients have understated their income in order to get a lower monthly rate. At the end of the year when they file taxes, it all gets fixed. If under, they owe federal taxes. They take and recompute and you have to take the increase for every month you had obamacare.

Its not a difficult concept and is effective.

Posted by: Midwestgut | May 18, 2014 11:40:20 PM

Low level abuses of Obamacare should be summary offenses, with bills generated by computer, followed by interest demands, fines, and lastly jail for the scofflaws. like traffic tickets. Feds can program the computer to keep everyone honest, with their access to IRS, bank, check cashing databases. Subcontract to Google if .gov can't do it.

Posted by: Supremacy Claus | May 19, 2014 7:48:48 AM

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