WASHINGTON -- Drug Enforcement Administrator Michele Leonhart and her boss, Attorney General Eric Holder, appear locked in a bureaucratic staring match over the Obama administration's attempt to reform the way the federal government approaches criminal justice and punishment.
For Holder and for President Barack Obama, sentencing reform has become a critical, second-term legacy item, as they aim to bend the arc of incarceration policy away from a federal system well practiced at imprisoning drug offenders for as long as possible. But those efforts are colliding with institutional resistance from law enforcement officials with a single-minded focus and, perhaps, turf to defend.
The high-level shift toward easing punishment for drug offenders, backed by public opinion, raises the question of whether any DEA chief who could win the support of rank and file agents would be willing to carry out White House reforms. So far, Leonhart appears uninterested, at best.
She publicly distanced herself from Obama's remarks about marijuana's relative harmlessness. She griped about the Justice Department's failure to try to block marijuana legalization in Colorado and Washington state. She clings to a comically outdated view of drugs, refusing to acknowledge a difference between pot and crack cocaine. And this week, her agency picked a fight with Kentucky over the state's purchase of industrial hemp seeds to begin a newly legalized agricultural test.
For now, it's sentencing reform that raises the biggest questions. Leonhart's remarks before the Senate Judiciary Committee last month about mandatory minimum sentences caused people in top echelons of the Justice Department to ask whether she was on board with her bosses on sentencing reform, sources familiar with the tensions told The Huffington Post.
Leonhart was responding to Sen. Chuck Grassley (R-Iowa), who asked about the importance of mandatory minimums. Some law enforcement groups oppose the Smarter Sentencing Act, a bipartisan bill that would roll back the length of certain mandatory minimum prison terms. Leonhart emphasized the importance of mandatory minimums, leaving the impression she opposed changes to the current sentencing structure, which gives federal prosecutors huge leverage over defendants.
Justice Department concerns about Leonhart were heightened when, after her testimony, a DEA spokeswoman would not say whether Leonhart endorsed changes mandatory minimums, telling The Huffington Post that the DEA administrator's testimony would "have to speak for itself."
The concerns led to a conversation between Holder and Leonhart, according to a person familiar with the discussion. Leonhart told her boss there had been a misunderstanding.
The DEA sent The Huffington Post a follow-up statement a week after the first, expressing Leonhart's public support for reforms made by Holder that rolled back the deployment of harsh mandatory minimum sentences against certain drug offenders.
"The Administrator believes mandatory minimums in general can be an important tool in DEA investigations, but she supports the Attorney General’s sentencing reform initiative to ensure those sentences are imposed appropriately," the DEA said in the new statement.
Julie Stewart, president of Families Against Mandatory Minimums, applauded Leonhart for what appeared to be shift in tone, and said the Smarter Sentencing Act would help make sure sentences were administered appropriately. "We commend Administrator Leonhart for acknowledging the need to appropriately sentence federal drug defendants," Stewart said in a statement. "The Smarter Sentencing Act not only creates those appropriate sentences, it also saves taxpayers billions and allows for investment in programs proven to make our communities safer."
But Leonhart's new statement left much unclear. Asked specifically if Leonhart would be open to legislation that would reduce the length of mandatory minimum sentences, such as the Smarter Sentencing Act that Holder backs, a DEA spokeswoman referred questions to the Justice Department.
Leonhart, who has been a part of the DEA bureaucracy since 1980, was reined in earlier this year after she blasted Obama before a crowd of sheriffs at an event closed to reporters. Leonhart distanced herself from the president's recent comments about marijuana's relative harmlessness. She was later told such comments were inappropriate -- even at an event closed to the media, according to a person familiar with the discussions.
Leonhart has publicly complained about the Justice Department's failure to sue Washington and Colorado for legalizing and regulating marijuana, telling a House committee last month it was "a legal decision, not a law enforcement decision." (Holder, on the other hand, has called the federal position on state marijuana laws a "law enforcement decision.")
Leonhart criticized the administration for taking so long to decide what to do about states legalizing marijuana, saying there was "a lot of confusion in that 296 days while they were reviewing it and deciding how to proceed." When Rep. Andy Harris (R-Md.) asked last month how federal officials were going to keep marijuana out of the hands of children, Leonhart suggested it would be "a good question for the attorney general."
Leonhart refused to acknowledge any difference between crack and marijuana. Holder said he's open to working with Congress to reschedule marijuana to remove it from the same category as heroin, and said he's "cautiously optimistic" about legalization in Washington and Colorado. Leonhart claimed drug cartels are behind legal marijuana businesses and warned of the impact of legalization on dogs.
Leonhart's mixed message on mandatory minimum sentences, at a time when bipartisan consensus is forming in Congress to roll back harsh punishments for some crimes, is drawing greater concern.
The federal criminal justice system uses the threat of a guaranteed stiff sentence in the event of a conviction as a tool to force lower-level defendants to plead guilty in exchange for a lighter prison term. The changes made by Holder last year were intended to allow lower-level offenders to avoid harsh mandatory minimum sentences, and he's now trying to codify sentencing reforms into law.
"A lot of federal prosecutors were used to just charging a mandatory minimum and using that as leverage to get people to cooperate with us, plead guilty, and move on to the next case, and it will not be as easy for us to do that," Tim Heaphy, the U.S. Attorney for the Western District of Virginia, said in a recent interview. "But the federal sanction is still tremendously powerful, and even if it is not a mandatory or if it is a lesser mandatory and the numbers come down and [The Smarter Sentencing Act] passes, you're still going to have plenty of leverage to get people to cooperate up the chain of drug organizations."
Still, many in the law enforcement community oppose any legislation that may change the current mandatory minimum sentencing structure. An online survey of more than 650 self-selected assistant U.S. attorneys found that just 15 percent supported the Smarter Sentencing Act, with more than 60 percent opposed. A group of former Justice Department and DEA officials -- who, in their words, "served in the war on drugs" and "on the front lines of justice" -- signed a letter to Senate Majority Leader Harry Reid (D-Nev.) and Minority Leader Mitch McConnell (R-Ky.) this week expressing concerns about slashing the length of mandatory minimums.
The DEA's standoff with Kentucky over non-intoxicating hemp shows how unyielding the agency can be, even when laws change. Hemp, sometimes known as marijuana's sober cousin, can now be legally grown for research purposes, thanks to this year's farm bill. Yet the DEA this week seized industrial hemp seeds intended to launch Kentucky's legal growing of hemp, used in products ranging from textiles to cosmetics. McConnell, who helped write the law that lifted the ban on hemp production, called the seed seizure "an outrage."
Leonhart went so far as to tell sheriffs earlier this year that a hemp flag flying over the U.S. Capitol last July 4 marked the lowest point in her career.
In the history of American government bureaucracy, there are precious few examples of agencies ceding ground, even as their mandates change. The Rural Electrification Administration survived into the 1990s, for instance, before its name was changed to the Rural Utilities Service.
Perhaps the most significant example of an agency putting itself out of business is the Civil Aeronautics Board. Led in the 1970s by economist Alfred Kahn, a dogged advocate of deregulation, the agency oversaw the unleashing of the airline industry that led to its own demise. Founded in 1938, the Civil Aeronautics Board folded 1984.
The DEA, whatever the value of its ultimate mission, is widely credited as a highly functioning agency, with an impressive array of confidential informants, the ability to trace complex financial transactions and a history of successfully placing undercover operatives deep inside closed groups of militants.
Drug policy expert Mark Kleiman, a professor of public policy at UCLA, has in the past opposed recommendations to dissolve the DEA and split up its functions. But that resistance may no longer be an option, he said.
"The DEA is full of skilled and aggressive agents, especially in the management of undercover operations. As a result, and also as a result of the insanely severe sentences under federal drug laws, an agency less than a third of the size of the FBI accounts for about half of all federal prisoners," Kleiman told HuffPost. "The question is whether that sort of aggressive enforcement of the drug laws is what we need. It's not at all clear that locking up more drug dealers leads to less drug abuse, and the DEA has not been a leader in shaping drug law enforcement to reduce violence and disorder."
The impulse of the DEA to defend its turf is understandable, he said, but should be discounted.
"Any DEA administrator feels an organizational imperative to support the existing drug laws and sentencing structure, even when doing so means opposing the purposes of the attorney general and the president, as we see currently," Kleiman said. "So I'd be inclined to reconsider my former opposition to merging the DEA" and perhaps the Bureau of Alcohol, Tobacco, Firearms and Explosives, into the FBI. "That would allow the combined agency to turn the skills and aggression of today's DEA agents against gun traffickers, cigarette smugglers, and purveyors of political violence."
Doing so would give the FBI a much-needed boost in its flagging effort to investigate and prosecute financial crimes. As former Sen. Ted Kaufman (D-Del.) recently noted, an inspector general report found that the FBI ranked complex financial crimes as "the lowest of the six ranked criminal threats." Mortgage fraud was "the lowest subcategory threat" listed in that category.