A study by the U.S. Sentencing Commission found that more than 47% of all drug defendants in Iowa's southern federal court district ended up with mandatory minimum sentences in 2010 — the third-highest rate in the country. In the northern district, it was more than 40%, the sixth-highest rate. There's even greater inconsistency in the use of 851 motions. In Iowa, they landed on about 80% of eligible offenders, according to sentencing commission data. In bordering Nebraska, the figure was 3%.
In a recent opinion, Bennett criticized the Justice Department for the "jaw-dropping, shocking disparity" in how prosecutors wielded the motions. He called the process "both whimsical and arbitrary, like a Wheel of Misfortune."
Some say prosecutors will be reluctant to give up a powerful tool to break open cases — the ability to threaten recalcitrant witnesses with a long federal sentence if they don't play ball.
"It is the underlying culture that you measure yourself with the lengths of sentences that you receive," Brett Tolman, a former U.S. attorney in Utah, said at a Senate Judiciary Committee hearing.
One federal judge in Brooklyn, N.Y., said Holder's policy didn't go far enough to rein in prosecutors who routinely wielded 851 sentence enhancements as a "2-by-4 to the forehead" to force defendants to accept plea deals. If the Justice Department "cannot exercise its power … less destructively and less brutally, it doesn't deserve to have the power at all," wrote District Judge John Gleeson, a former prosecutor, in a sentencing opinion last month.
A Justice Department official said the agency would monitor drug cases across the country but was confident that prosecutors "understand that these new guidelines are aimed at ensuring federal laws are enforced more fairly, and federal resources are used more efficiently."
The new policy has already led to some changes in Iowa.
In the southern district, the top prosecutor is Nicholas A. Klinefeldt, a former defense attorney with an unusual family history. His father is a convicted meth dealer who spent 10 years in federal prison, on a mandatory sentence doubled by an 851 motion. Klinefeldt said his office now declined smaller meth lab cases, avoided triggering mandatory minimums and rarely filed for 851 enhancements.
U.S. Atty. Sean Berry in the northern district had continued to seek tough sentences until Holder issued his memo, but said his office recently withdrew requests for double sentences for two drug offenders.
The shift comes too late for Newhouse, who received an 851 enhancement based on a state bust nine years earlier, when she was found with meth and psychedelic mushrooms.
Newhouse, 34, could have ended up with even more time. An addict since she was 15 with a string of drug-dealing boyfriends, she had other drug arrests. Prosecutors first classified her as a career offender; guidelines called for a 22-year sentence. But they decided that would be unfair and asked for 10 years, minus two years for cooperation.
"I was going to get years, regardless," Newhouse said. "They took all that time I had to be away from my kids, and doubled it."