Changes in Federal Criminal Law Since Trump

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Many of my clients ask me how the election of Donald Trump to the presidency has changed the outlook on their cases. As one would expect, the existing criminal laws are now being enforced much more harshly, resulting in unfair incarceration for many first offenders. Below are the three major areas that I have seen substantial changes in the last year

1. Charging of Five and Ten Year Mandatory Minimum Offenses for First Time Drug Offenses

Obama’s Attorney General, Eric Holder, issued a famous memo that has become known by attorneys as the “Holder Memo.” Unfortunately, the New Attorney General, Jeff Sessions promptly repealed it. This memo allowed the government to charge first-time drug couriers, who have no record of violence
and who play a minimal role in the drug distribution, the charges that do not allege the weight of the narcotics. The result of this is that the judges did not have to impose five and ten-year mandatory sentences without parole for first-time drug offenders.

Now, the government almost always alleges the weight of the drugs in the charging document. As I have written about previously just a few pounds of cocaine and methamphetamine are enough to invoke these mandatory penalties which the judges must impose absent unusual circumstances. Where before I saw first-time drug offenders receiving sentences of three years or even less under federal law, many young first-time drug offenders are being incarcerated for the ten-year minimum terms with the hands of the defense attorneys being tied to reach a better result.

2. Elimination of Diversion Program for Alien Smuggling Offenses

Recognizing that sometimes an individual may bring a family member or close friend into the United States and not constitute any threat to the security of the United States, the United States Attorney’s Office in San Diego previously offered a program where a first time offender could eliminate having a felony conviction after several years if he or she remained law-abiding. This resulted in individuals, who had never broken the law before, having a chance to avoid a federal felony, which often carries with it drastic employment consequences. With the elimination of this program, anyone who has an undocumented individual in their car and is found guilty is facing being a convicted felon for life, with no chance of erasing the charge from their record. If money was involved in the case, the government now routinely charges the case so that the individual is facing a three-year mandatory term of imprisonment.

3. Vigorously Prosecuting Marijuana Offenses

Going back on the promise of the previous Administration, Jeff Sessions is not beginning to target marijuana-related cases, even prosecuting clinics that are in full compliance with state law and attorneys who give advice on how to regulate a marijuana coop. Regardless of your views on marijuana, the majority of American favor legalization, at least for medical purposes, and many individuals, including the former Attorney General of California are involved in the cannabis business. The bottom line is that anyone involved in the cannabis industry is now in danger of federal prosecution. The current administration has turned a blind eye to science (that marijuana has not been shown to be harmful to adults when not used excessively), Homeland Security (that legalizing marijuana cuts out the cartels from this business) and economics (that marijuana that is regulated by the states brings in billions of dollars of revenue.)

These changes are not totally partisan although they find more support in the Republican party.

Many conservative Republicans are against the mass incarceration of individuals in this country, who pose no threat to society. What you can do if you oppose such changes is communicate your feelings to your government representatives and vote in the next presidential election. Also, educate yourself about groups such as Families Against Mandatory Minimums (FAMM) who are working to return the sentencing discretion to the judges and not the prosecutors.

ABOUT THE AUTHOR: Russell S. Babcock
Russell Babcock is a preeminent federal and state criminal defense attorney. He is bilingual en Espanol. He is a certified criminal law specialist. The emphasis of his firm is on complex federal felonies including border and drug crime, white-collar crime and appeals He has argued six times in front of the California Supreme Court. Mr. Babcock received his JD from the University of California Davis in 1981.

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Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.

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