The Eric Holder Memorandum on Mandatory Minimum Sentences, Explained

Law, Politics & Current Events

Yesterday Attorney General Eric Holder announced that the United States Department of Justice would no longer seek lengthy mandatory minimum sentences in some federal drug prosecutions. He simultaneously released a memorandum directing federal prosecutors on the new policy.

But what does the policy really mean, and how will it impact federal drug prosecutions? In practice, the policy significantly increases the power and discretion of federal prosecutors, while giving an opportunity for some defendants to escape draconian mandatory minimum sentences.

Here's how it works, in more detail than you may want to know.

Federal Sentencing In General

The first thing you have to understand is that federal sentences depend on the interplay of three sources of authority:

(1) the United States Sentencing Guidelines (which I have tried to explain in posts like this and this), a ridiculously complex set of rules created by the United States Sentencing Commission under the authority of the 1984 Sentencing Reform Act;

(2) specific federal statutes mandating minimum sentences for certain crimes, such as the federal laws governing drug trafficking; and

(3) the inherent power and discretion of the United States District Judge imposing the sentence, which power and discretion is supposed to be governed by the federal law enumerating the factors that a federal judge should consider in imposing a sentence.

For years after the Sentencing Reform Act, federal sentencing would work like this: the judge would calculate the sentence under the Sentencing Guidelines, resolving the competing arguments of the government and the defense. The judge would then choose a sentence within the range of punishments allowed by the guideline calculation, taking into account the statutory factors the judge is supposed to consider. If a mandatory minimum sentence applied under a federal statute (for instance, because the defendant was convicted of trafficking a specified volume of drugs), and that mandatory minimum was higher than the guideline sentence, the judge would impose the mandatory minimum sentence instead. For about 20 years, the sentencing range resulting from the United States Sentencing Guidelines calculation was mandatory — absent finding an extraordinary circumstance justifying a variance called a "departure", the judge didn't have discretion to go above or below the guideline sentence, except to impose a mandatory minimum sentence.

Calculating a sentence under the Guidelines requires making a wide variety of findings of fact: how much cocaine was the defendant carrying? Did the defendant have prior convictions? Did the defendant carry a gun during the crime? For years, it was undisputed that the judge had the power to make these findings and impose the sentence dictated by federal law based on those findings.

This changed with a line of Supreme Court cases culminating in 2005.

With United States v. Booker, The Guidelines Become True Recommendations

The Sixth Amendment to the United States Constitution gives you the right in "all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial." Starting in about 2000, the Supreme Court began to explore how that right applies to sentencing. Specifically the Court asked this question: when a statute imposes different punishments based on different levels of culpability, who must determine that level of culpability, the judge or the jury?

In 2000, the Supreme Court decided Apprendi v. New Jersey. Apprendi fired shots into a neighbor's house; he pled guilty to weapon possession charges, but not to an enhancement factor that carried a longer sentence for racial motivation. The trial judge found that Apprendi's shooting was racially motivated. The Supreme Court found that this sentence violated Apprendi's Sixth Amendment right to trial by jury. In brief, the Court found that when a factor increases a defendant's statutory maximum sentence, that factor (with the exception of prior convictions) must be either determined by a jury or else subject to a specific guilty plea. In other words, if a statute says that the defendant can be sentenced to up to 10 years, or up to 15 years if the defendant carried a gun, the judge can't sentence the defendant to 15 years unless the jury finds that the defendant carried a gun or the defendant pleads guilty to carrying a gun. A federal judge can't make, on his or her own authority, findings of fact increasing the maximum sentence.

Commentators believed that Apprendi called into question the structure of federal sentencing, and they were right. In 2005, in United States v. Booker, the Supreme Court extended the holding of Apprendi and used it to overturn the mandatory nature of the United States Sentencing Guidelines. In Booker the Court found that the Guidelines were unconstitutional to the extent they were mandatory, because they mandated a higher sentence based on sentencing factors found by the judge, not by a jury. For instance, the Guidelines mandate a higher sentence for someone who carries a gun during a crime; because the Guidelines allowed the judge, rather than a jury, to make the factual determination of whether the defendant carried a gun in calculating the sentence, they violated the defendant's Sixth Amendment right to a jury trial. Rather than strike down the Guidelines in total, the Court struck down only the provisions requiring federal judges to obey them. The Guidelines thus became true guidelines — they acted as recommendations to a sentencing judge, not strictures.1

So where does that leave us? The three factors described above still apply, and judges still calculate the Guidelines sentencing range. However, judges now treat that range as a recommendation or starting point. That change makes mandatory minimum sentences even more important.

How Do Mandatory Minimum Sentences Impact All Of This?

So what difference do mandatory minimums make in this scheme? They can make a huge difference when the Guideline sentence is lower than the mandatory minimum, or when the judge is inclined to give a sentence lower than the mandatory minimum.

Imagine a 22-year-old defendant named Jane Doe. Jane's boyfriend asks her to drive a package from his house across town to his buddy. Jane is young and stupid and agrees and does so. Jane knows the package contains drugs. It doesn't matter that she doesn't know what kind of drugs, or how much. Jane has committed at least two federal felonies — she's possessed drugs with intent to distribute them to another and has conspired (that is, agreed with another person) to do so. Jane gets caught. The Janes usually get caught; the boyfriends often don't.

How much time is Jane looking at, if she's unlucky enough to get charged by the feds? It depends on what's in that package.

Let's avoid the issue of the avoid the thorny issue of the huge disparity between sentences for powder and crack cocaine and assume Jane's boyfriend is all Breaking Bad and has asked her to mule a bit more than half a kilo of medium-to-low-quality meth — say 600 grams. Is that a lot? Sure. It may be worth around $20,000 wholesale and around $60,000 retail. How many doses is it? That depends on which meth addict you ask.

Jane wants to plead guilty. The judge finds that the sentencing range suggested by the United States Sentencing Guidelines is 78-97 months.2 The judge doesn't see much point in incarcerating Jane for seven and a half years given the nature of the offense and her background, and enjoying her post-Booker freedom is inclined to go lower than that to, say, two or three years.

But wait! Jane's pleading guilty to a federal drug crime involving 600 grams of a substance containing methamphetamine. That carries a ten year mandatory minimum sentence under federal law. The Guidelines don't matter — the judge is required to impose that sentence absent two exceptions.

The first possible exception is cooperation. If Jane cooperates with the government — agrees to testify against her boyfriend, does anything else they ask — the United States can, in its sole discretion, invite the judge to go below the mandatory minimum sentence. That, obviously, is an extremely powerful tool to coerce cooperation.

The second possible exception is the so-called "safety valve." The safety valve allows a federal judge to go below a mandatory minimum sentence if (1) the defendant has no more than one point of criminal history under the Guidelines, (2) the defendant didn't use threats or violence, (3) the offense didn't result in death or injury, (4) the defendant wasn't an organizer or leader, and (5) the defendant has fully confessed everything she knows about the offense to the government.

But not everyone can get the "safety valve." A criminal history that seems ridiculously minor can yield more than one criminal history point, making it unavailable. Let's say Jane did a year of probation for passing a bad check, and is currently on probation for driving with a suspended license. That's four criminal history points. No safety valve for Jane. Unless she cooperates to the government's satisfaction, she's looking at a ten-year mandatory minimum stay in federal prison. She'll do at least 85% of that time.

So What Does Holder's Memorandum Do?

This week's Holder Memorandum instructs federal prosecutors to charge certain defendants so that mandatory minimums sentences aren't triggered.

How would you do that?

Well, to understand that, you have to understand how the Supreme Court has extended the Booker doctrine discussed above. This June the Supreme Court decided Alleyne v. United States, holding that mandatory minimum sentences violate the Sixth Amendment unless the defendant admits, or a jury finds, the sentencing factors triggering the mandatory minimum. In other words, in our hypothetical, Jane Doe would either have to plead guilty to carrying 600 grams of meth, or a jury would have to specifically find she did so, to trigger her ten-year mandatory minimum. The judge can't impose it based on a judicial finding of fact.

The Holder Memorandum suggests that federal prosecutors take advantage of this ruling by deliberately charging certain cases so that they don't trigger the mandatory minimum. If the indictment doesn't specify the volume of drugs, and the plea agreement doesn't require the defendant to admit it, or the jury isn't asked to find it, under Alleyne the judge can't impose the mandatory minimum. In other words, prosecutors would use discretion not to charge certain factors that would, if they charged them, trigger more draconian sentences. The defendant would be sentenced instead according to the recommendation of the Guidelines and the judge's discretion.

The Holder Memorandum suggests taking this more lenient step when the following conditions are met: (1) the defendant's conduct doesn't involve violence or trafficking to minors, (2) the defendant is not a leader or manager or organizer of others in criminal behavior, (3) the defendant doesn't have "significant ties" to large-scale drug trafficking organizations, and (4) the defendant doesn't have a "significant" criminal history, with "significant" meaning roughly three criminal history points under the Guidelines. Note the scenario above that got Jane Doe 4 points; the memo would allow prosecutors discretion to decide that wasn't significant. It is remarkably easy to get more than three criminal history points. It's particularly easy if you're poor. Criminal history calculations are driven in part by the sentence you served on the prior. If you're poor, and you get charged with something relatively minor, you probably didn't get bail, and you probably pled out to time served after a few months of wrangling. If you're not poor, you probably got bail and pled and got probation. If you get sentenced to sixty days time served, you get two criminal history points; if you get sentenced to probation, you get one. See?

The Holder Memorandum requires prosecutors to engage in a similar analysis before filing draconian enhancements that double mandatory minimum sentences for defendants with prior drug distribution convictions. By way of example, I had a client sentenced to mandatory minimum life imprisonment based on enhancements triggered by his priors. After I got that overturned, he was sentenced under the Guidelines, and his eventual Guidelines sentence was about 12 years.

In short, the Holder Memorandum directs prosecutors to prevent application of mandatory minimum sentences for a select group of less-culpable defendants.

Isn't This A Good Thing?

Yes, with a but.

It's a good thing that the Jane Does of the world can be sentenced according to the judge's discretion and not according to mandatory minimum sentences. A lot of low-level, unsophisticated, and hapless mules and mopes and dupes will get far lower sentences, which is both just and less expensive for you, the taxpayer.

It's a good thing that the Department of Justice is reconsidering, and walking back from, aggressive promotion of mandatory minimum sentences whenever mandated by law.

It's a good thing that the Holder Memorandum makes a discussion of the War on Drugs and drug sentencing to be more mainstream and therefore safer for even limp-spined politicians to discuss.

But . . .

I'm not happy that the methodology for the change is a fairly dramatic expansion of prosecutorial discretion. Prosecutors already had a vast amount of discretion in imposing mandatory minimums — they decided whom to charge federally at all, and decided when a defendant cooperates whether that cooperation is sufficient to spare them the mandatory minimum sentence. But previously, with certain exceptions, the Justice Department required prosecutors to seek the mandatory minimum when it was applicable. The Holder Memorandum confers an additional and substantial measure of discretion by letting prosecutors judge which defendants deserve mandatory minimums based on some criteria that incorporate wiggle room. The Holder Memorandum also continues to normalize vast prosecutorial discretion by making explicit that prosecutors can dictate Jane Doe's sentence simply by deciding whether or not to mention drug weight in her indictment. Federal prosecutors therefore retain almost unimaginable power to change the course of lives, to coerce cooperation, to separate some defendants from others.

Great and terrible power, exercised with some lenience, is still great and terrible power.

Edited to add: For a slightly different take, consider Scott Greenfield, who suggests that the Holder Memorandum would apply to a relatively small universe of defendants. As I say in the comments to Scott's post, I think different districts have different defendant populations.

  1. Guidelines still have an impact on appellate review of sentences, a complex subject beyond the scope of this post.  
  2. It's not central to this post so I'm not showing my work. I assumed a Level 32 base under 2D1.1, three points for acceptance of responsibility, and two points from a reasonable judge for minor role, at CHC II. I'm also assuming Jane got caught with a mixture containing meth and not pure meth, called methamphetamine (actual), which carries much higher penalties.  

Last 5 posts by Ken White

76 Comments

66 Comments

  1. Ken White  •  Aug 13, 2013 @12:46 pm

    tl;dr

  2. SirWired  •  Aug 13, 2013 @1:00 pm

    As an utterly random side-note, I've been on the receiving end of such discretion, as applied by a police officer… I got popped for speeding in rural NC (got the speed limit increase sign off by a 1/4 mile.) The officer cut me a break; while he recorded the actual speed on the ticket (14 over, IIRC), he charged me with "Exceeding The Posted", which I was able to cheaply have a lawyer plead down to "Improper Equipment."

    But on the actual topic at hand… The current mandatory minimums are indeed draconian; I think even Holder agrees that overhauling the guideline/mandatory minimum system would be ideal. But since that would require the GOP to agree to something it would be more fun for them to score political points off of instead (not to mention the fact they generally don't represent districts where the mandatory minimums are a major problem), the chance of it actually happening is Less Than Zero.

    With those circumstances in mind, this seems to be a doable workaround.

  3. Mike  •  Aug 13, 2013 @1:06 pm

    Great post. What more do you think could be done through Dept. of Justice changes alone, and what would require a legislative solution?

  4. Vince Clortho  •  Aug 13, 2013 @1:07 pm

    Lengthy, but a very thorough analysis, Ken. Also correct, in my experience.

  5. Clark  •  Aug 13, 2013 @1:09 pm

    @Ken White

    tl;dr

    LOL! Genius.

  6. Clark  •  Aug 13, 2013 @1:09 pm

    For about 20 years, the sentencing range resulting from the United States Sentencing Guidelines calculation was mandatory — absent finding an extraordinary circumstance justifying a variance called a "departure", the judge didn't have discretion to go above or below the guideline sentence, except to impose a mandatory minimum sentence.

    It is "mandatory" that I breath, or else I die.

    It is "mandatory" that I show up for my uncle's thirtieth anniversary party, or else I get stern looks and lectures at the next family gathering.

    Utterly serious questions:

    What sort of "mandatory" are we talking here?

    What happens if a judge refuses to, metaphorically speaking, sign an execution warrant?

    Does he get a nasty letter in his file?

    Does he get fired?

    Does he himself go to jail?

    Were there ever any conscientious objectors among judges, or do all of the "just follow orders" ?

  7. Anton Sirius  •  Aug 13, 2013 @1:13 pm

    If I thought this was the only change that would be made to the drug laws, I'd be worried. But I'm choosing to see it as one of the first initial tentative steps towards sanity, in which case it's encouraging.

  8. Ken White  •  Aug 13, 2013 @1:13 pm

    What happens if a judge refuses to, metaphorically speaking, sign an execution warrant?

    The Department of Justice would appeal, and the decision might well get overturned.

    DoJ was fairly aggressive in appealing incorrect refusals to apply the mandatory minimum, and somewhat less aggressive in appealing judges who departed improperly from the guidelines.

  9. ChicagoTom  •  Aug 13, 2013 @1:47 pm

    Thanks Ken. Been waiting for you to chime in on this since it was announced. Very informative.

    Follow-up Questions: Obviously you are concerned about the discretion aspect — is the implication that , before this announced change prosecutors HAD to include all that information (the info that could trigger the mandatory min.) in the court papers (indictment??) regardless of how they personally felt about it?

    Did they never have this kind of discretion before? Or is that Holder's order will force them to actually use this discretion even if they weren't so inclined to before?

    If there was very over-zealous prosecutor who doesn't differentiate between these low-level non-violent offenders, would Holder's announcement force him to have to at least evaluate whether to seek mandatory min.?

    Would a defendant have any way to challenge the prosecutor's decision to include the mandatory min. factors? If someone was (or seems to be) a person this change was meant to help, but whoever did the review decides they aren't — is there any recourse or way to challenge the prosecutor and try and show they didn't do a good faith analysis??

    Thanks

  10. Darryl  •  Aug 13, 2013 @1:52 pm

    I would be interested in reading a good analysis of the (un)constitutionality of other legislative mandates in criminal law, like laws that make you ineligible for community supervision (probation) if you are convicted of certain crimes. That seems to me to violate the separation of powers, having the legislative branch tell the judicial branch what the punishment must be/cannot be/must include.

  11. Ken White  •  Aug 13, 2013 @2:02 pm

    Follow-up Questions: Obviously you are concerned about the discretion aspect — is the implication that , before this announced change prosecutors HAD to include all that information (the info that could trigger the mandatory min.) in the court papers (indictment??) regardless of how they personally felt about it?

    Actually, the law used to be that the judge would determine the mandatory minimum based on the facts the judge found at sentencing. It didn't need to be in the indictment and usually wasn't.

    At some point most U.S. Attorneys Offices started charging the amount of drugs in the indictment, anticipating which way SCOTUS might go on this issue, thus avoiding a bunch of overturned sentences. During that period they were required to charge the amount, thus triggering the mandatory minimums.

    The only thing they previously had discretion about was charging priors triggering the doubling of mandatory minimums.

    Did they never have this kind of discretion before? Or is that Holder's order will force them to actually use this discretion even if they weren't so inclined to before?

    Before they didn't have this sort of discretion, except limited discretion not to charge prior drug offenses.

    If there was very over-zealous prosecutor who doesn't differentiate between these low-level non-violent offenders, would Holder's announcement force him to have to at least evaluate whether to seek mandatory min.?

    Yes, but such decisions would likely not be reviewed.

    Would a defendant have any way to challenge the prosecutor's decision to include the mandatory min. factors? If someone was (or seems to be) a person this change was meant to help, but whoever did the review decides they aren't — is there any recourse or way to challenge the prosecutor and try and show they didn't do a good faith analysis??

    No. It's fairly well established that internal DoJ guidelines don't confer rights on defendants. THere's a footnote in the Holder Memorandum pointing out that this memorandum doesn't confer any rights.

    The only recourse you'd have is if you could prove that an office was applying the rule differently for different protected groups — say, along racial lines.

  12. Stormy Dragon  •  Aug 13, 2013 @2:21 pm

    So basically the decision is to turn the mandatory minimums into yet another hammer for prosecuters to use on defendants that insist on going to trial instead of agreeing to a plea bargain?

    "If you plead guilty, we'll waive the mandatory minimums, but if you insist on going to trial, I'm afraid I'm gonna to have to ammend the indictment to include the amount, which will no doubt lead to a much harsher sentence."

  13. Kevin  •  Aug 13, 2013 @2:44 pm

    Great post Ken, I too wait around for your analysis of these types of things every time they are announced.

    I agree with prior comments and I am optimistic that this is only a stop-gap mechanism and that mandatory minimums will be decreased in the future.

  14. Erwin  •  Aug 13, 2013 @2:44 pm

    It sounded more like…
    …we've decided that changing the mandatory minimums is politically infeasible. So, we've decided (in good faith) to increase the prosecutor's discretion to improve the results of the justice system.

    …one of the bad side effects of this decision is to weaken the rule of law by increasing the power available to the prosecution. Given that you people vote for these obscene drug laws and politicians that support them, this is the best we've been able to do.

    –Erwin

  15. Chris  •  Aug 13, 2013 @2:45 pm

    So, this approach gives a lot more discretion to prosecutors. Is this deliberate (Holder is trying to give prosecutors more power) or is it a side effect of the fact he's trying to do this using solely executive actions, without involving congress?

  16. ChicagoTom  •  Aug 13, 2013 @2:49 pm

    No. It's fairly well established that internal DoJ guidelines don't confer rights on defendants. THere's a footnote in the Holder Memorandum pointing out that this memorandum doesn't confer any rights.

    Well that's a bit depressing. So basically, this whole exercise could be just for show. Holder's announcement could be blown off by his prosecutors and nothing changes, and there would be no recourse.

    And of course, the next AG could rescind them as he/she pleases, yes??

    Why do I feel let down??

  17. John Thacker  •  Aug 13, 2013 @3:02 pm

    My reason for being skeptical is that we've heard pronouncements from the Administration about how lenience should be used for medical marijuana shops obeying state law… and no such lenience has been forthcoming from the AUSAs or DEA.

  18. Chris  •  Aug 13, 2013 @3:07 pm

    Well that's a bit depressing. So basically, this whole exercise could be just for show. Holder's announcement could be blown off by his prosecutors and nothing changes, and there would be no recourse.

    That really depends how serious the administration is on this. If they want to, they could hold the US Attorneys' feet to the fire if they don't comply with the memorandum.

    And of course, the next AG could rescind them as he/she pleases, yes??

    Yep.

  19. Dan Weber  •  Aug 13, 2013 @3:09 pm

    I've wavered a lot on the years on "prescription versus discretion." Both methods have really big problems.

    I think discretion is the worst, besides all the others that have been tried and found wanting.

  20. grouch  •  Aug 13, 2013 @3:16 pm


    "If you plead guilty, we'll waive the mandatory minimums, but if you insist on going to trial, I'm afraid I'm gonna to have to ammend the indictment to include the amount, which will no doubt lead to a much harsher sentence."

    More power to threaten == more Aaron Swartz outcomes. Should make the NSA happy; those pesky hackers who create and maintain all the cool software toys are also inconvenient snitches, so, off with their heads!

    Alice… wake up now dear. The worms are eating your eyes.

  21. Richard  •  Aug 13, 2013 @3:18 pm

    Ken a question. What does signficant ties with gang or cartels mean in application to these new guidelines? It is my understanding the federal government is rarely arresting the end users but are focused on distribution. Since the War on Drugs has pushed the sale of drugs into the black market almost 100% of the drug supply is going to come from cartels and gangs. If you are in the distribution line it would seem you can't avoid ties with either the cartels or gangs and this might just be moot point?

  22. Ken White  •  Aug 13, 2013 @3:28 pm

    Ken a question. What does signficant ties with gang or cartels mean in application to these new guidelines?

    That's an excellent question. It means what they say it means.

  23. Ken White  •  Aug 13, 2013 @3:34 pm

    "If you plead guilty, we'll waive the mandatory minimums, but if you insist on going to trial, I'm afraid I'm gonna to have to ammend the indictment to include the amount, which will no doubt lead to a much harsher sentence."

    To be fair, the Memorandum does not explicitly endorse that.

    Federal prosecutors can, and do, tell defendants that they will file enhancements based on priors — thus doubling mandatory minimums — if they do not plead guilty.

    But the Memorandum does not endorse precisely the ploy you suggest. It says that if the prosecutor knows the information showing the defendants' eligibility for the program at the time of charging, then it should be charged that way (that is, without alleging the amount of drugs), and that if it is learned later, a plea should be offered that would eliminate the mandatory minimum.

    I suppose that opens it up to two abuses. First, the prosecutor could make a show of not having enough information to refrain from charging the mandatory minimum, even if they had enough information. Second, the prosecutor could read the memo to say "you must offer a plea dropping the mandatory minimum, but if they go to trial, you can still seek it."

  24. Allen  •  Aug 13, 2013 @3:51 pm

    I have a question on these criminal history points. Are they permanent?

  25. Ken White  •  Aug 13, 2013 @3:53 pm

    I have a question on these criminal history points. Are they permanent?

    No. Only sentences imposed within a set number of years count.

  26. Jonathan  •  Aug 13, 2013 @4:17 pm

    Ken,

    Thanks for this. As someone who finds these matters interesting, important, and difficult to understand, your clarity of explanation is appreciated!

  27. James Pollock  •  Aug 13, 2013 @4:23 pm

    Of course, ultimately the sentencing decision is primarily in the hands of the defendant… when they choose to commit the act(s) that leads to their being charged in the first place.

    The problem with giving judges more leeway in applying sentencing is that it increases the variability in sentences between judges (That is, your sentence could be different from somebody else's, someone who did the exact same crime as you, because they drew Judge Creampuff and your case was in Judge Hardass's court. You get a couple cases where someone with connections gets off with a sentence that seems unduly lightweight, and the howling for mandatory minimum sentences begins (remember, court cases are poorly reported AND poorly understood even when reported accurately…)

    It seems to me that directing the prosecutors to use judgment in applying for mandatory minimums helps, by taking many of the cases where a mandatory minimum seems unfair out of the picture, leaving the people who truly deserve minimum sentences to get them. I don't think AG Holder can do much more on his own. The executive branch has another option in its toolkit, clemency, but overuse of clemency is harmful to the appearance of the rule of law.

  28. Steven H.  •  Aug 13, 2013 @4:32 pm

    @James Pollock:

    "It seems to me that directing the prosecutors to use judgment in applying for mandatory minimums helps, by taking many of the cases where a mandatory minimum seems unfair out of the picture, leaving the people who truly deserve minimum sentences to get them."

    This assumes, of course, that the prosecutors use the discretion that way. On the other hand, if the discretion is used to decide that, say, white kids are "more deserving" of leniency than, say, black kids, not so much.

    Even worse, of course, is the "this kid is the son of the Senator who got me this job – he SURELY deserves some leniency in sentencing."

  29. Alistair  •  Aug 13, 2013 @4:46 pm

    Any thoughts on whether the private prison industry will lobby to keep the high rates of incarceration? After all lower rates would hurt their bottom lines.

  30. barry  •  Aug 13, 2013 @5:21 pm

    'optional-mandatory', another new one.

  31. Trent  •  Aug 13, 2013 @6:01 pm

    I'm skeptical that this will in any way be used to reduce sentencing requirements for anyone that isn't rich, powerful or connected. I have full faith that poor Jane will still be run through the ringer because Joe Prosecutor thinks she's scum because she's poor and had a rough childhood involving the crime all too common in destitute neighborhoods.

    Prosecutorial discretion is the double edged sword of Damocles, it can be used to reduce sentences and rehabilitate offenders or it can be used like it was in the Aaron Swartz case to destroy someones life to advance the political career of a prosecutor. Personally I think it will be used more for the later than the former, but maybe I'm jaded about federal prosecutors caring about anyone.

  32. James Pollock  •  Aug 13, 2013 @6:31 pm

    "This assumes, of course, that the prosecutors use the discretion that way."
    Yes, assuming that directives which lack racial overtones are interpreted as lacking racial overtones.

    "Even worse, of course, is the "this kid is the son of the Senator who got me this job – he SURELY deserves some leniency in sentencing.""
    That would be a step up from the current "he SURELY deserves some leniency in charging".

  33. Xenocles  •  Aug 13, 2013 @6:41 pm

    I oppose discretion on philosophical terms because if something is bad enough to prosecute anyone who does it, it's bad enough to prosecute everyone who does it. If that creates an excessive strain on our judicial system we should reevaluate the law, not the execution of it. (I also adamantly oppose exercising discretion in the form of deals for testimony since the practice is inherently corrupt. Why should a jury trust testimony that was offered in exchange for immunity or a lighter sentence any more than testimony that was offered in exchange for a duffel bag of cash from the defendant?)

    @James-

    "Of course, ultimately the sentencing decision is primarily in the hands of the defendant… when they choose to commit the act(s) that leads to their being charged in the first place."

    Because the only way to arrive at the sentencing phase is to commit a crime…

  34. Andre  •  Aug 13, 2013 @7:13 pm

    How do you think this will affect the career offenders? No mando minimums but the prosecutors will still ask for something within the CO range?

  35. Zack  •  Aug 13, 2013 @8:45 pm

    @Trent: At least from what I've seen and heard, this grants leeway in the downward direction only- and actually (to a certain extent) restricts their ability to increase a charge. So at least it will do no further harm, even if it does not do anywhere near as much as should be done.

  36. En Passant  •  Aug 13, 2013 @9:09 pm

    Ken summarized:

    Federal prosecutors therefore retain almost unimaginable power to change the course of lives, to coerce cooperation, to separate some defendants from others.

    Great and terrible power, exercised with some lenience, is still great and terrible power.

    Applause! And thanks for the brilliant analysis.

    When and if the Congress will do the right thing, repeal mandatory minimum statutes and let sentencing discretion reside only with the Judiciary, is a very long shot. But this potentially very temporary policy (good only as long as the Executive decides to maintain it) is better than nothing.

    It's probably good until the next moral panic.

  37. James Pollock  •  Aug 13, 2013 @9:15 pm

    "Because the only way to arrive at the sentencing phase is to commit a crime…"
    Well, being actually guilty of the crime IS the most common path to finding yourself standing in front of the federal judge weighing the sentencing options, is it not?
    If the prosecutor dislikes you so much that he or she has not only filed charges against you, but prosecuted you so effectively that you stand convicted, I don't think you should be counting on the prosecutor's qualities of mercy. Also, you should have gotten yourself a better defense lawyer, since being actually innocent is supposed to give your side a big edge in the proceedings.

  38. MCB  •  Aug 13, 2013 @9:26 pm

    Thank you so much for taking the time to post this Ken. As someone who–albeit very briefly–has defended criminal defendants in federal court I think anything that gets people to understand the insane and draconian federal sentencing scheme is a positive. I know it's optimistic bordering on insanity to think people will really learn about this stuff and change it, but I can hope. "Prosecutorial discretion" is a nice professional sounding term for the insane amount of power AUSAs and USAs have, which I think most of the public is unaware of and would be shocked to learn about.

  39. Xenocles  •  Aug 13, 2013 @10:01 pm

    @James-

    But that's not what you said. You said it was the defendant's fault for doing "what got him prosecuted." In a substantial number of felony cases, not necessarily federal I'll grant you, that act has amounted to little more than "looking like someone who might be the perpetrator." Would a better lawyer help them? Maybe, but better lawyers don't exactly work for free all the time (no insult intended to the laudable pro bono types around here, but at some point the firm needs revenue). I imagine the quality of being innocent also tends to lead you to underestimate the danger you're in – this is probably why so many people under investigation talk to their investigators.

  40. James Pollock  •  Aug 14, 2013 @1:58 am

    "But that's not what you said. You said it was the defendant's fault for doing "what got him prosecuted." In a substantial number of felony cases, not necessarily federal I'll grant you, that act has amounted to little more than "looking like someone who might be the perpetrator.""

    Did the defendant not do the looking like someone who might be the perpetrator? Don't do that, and you spend less time in court. Fact.

  41. Anony Mouse  •  Aug 14, 2013 @2:46 am

    So, let me see if I have this right, using a simplified version of your simplified example:

    OLD METHOD: Jane is charged with "posession with intent to distribute X amount of meth" which carries a federal minimum of 10 years.

    NEW METHOD: Jane is charged with "possession with intent to distribute meth" which has no minimum because there's no amount listed.

    So, if the 10 year minimum kicks in at 500 grams and you have 600 grams, they could just choose not to mention how much there was, essentially charging you the same way they would if you had a dime bag (however much that is)?

    Of course, since a lot of drug prosecutions are federal and are state, this is a pretty small change in the grand scheme of things. Unless state AGs follow.

  42. Ambrose  •  Aug 14, 2013 @6:08 am

    Ken,
    Long time reader, first time commenter. Thanks for the explanation. One question remained in my mind though, as a total non-lawyer who's read just enough books to be dangerous.
    In the "Jane Doe" example above, wouldn't mens rea figure into the equation at all?
    I know as a defense lawyer, you're probably laughing at my naivete, but it seems to me you should have to have intended to do something wrong to be guilty of it…

  43. azazel1024  •  Aug 14, 2013 @6:16 am

    I guess the part I have a hard time wrapping my head around is, if a crime has a sentencing guideline of, say, 4-15 years…shouldn't the mandatory minimum be 4 years?

    Shouldn't that range of 4-15 years already take in to account enhancements?

    Maybe I am not looking at it the right way, but I feel like (in a just world) as an example, vehicular manslaughter…

    If you have no criminal history and nothing to enhance it, you strike a person in a crosswalk running a redlight and they die, you are charged with vehicular manslaughter (there was no demonstrated intent, so it isn't murder)…you face 4 years.

    You were drunk or high at the time, so you get it bumped to 8yrs as an enhancement

    Or you have 2 prior misdemeanors, so it is bumped to 5 or 6 years

    Or you were driving on a suspended license, back to 8yrs

    Or you were driving on a suspended license, drunk AND had a prior DUI, 12 years

    Or you were driving on a suspended license, drunk, had a prior DUI, had a couple of prior convictions of other crimes AND you showed absolutely no remorse, 15 years.

    Judge/Jury with some leeway on exactly what the sentence is though depending on the specific case in front of them, with those guidelines to work with.

    Shouldn't that be the way it works with all crimes? The sentencing ranges should already be taking in to account all of this stuff.

    Prosecutorial discretion should range to "do I think there is evidence to charge a crime" and possibly "If they seem really sorry and are willing to plead guilty, maybe I can charge them with a lesser crime and/or suggest to the judge that they look at the lower range of penalties". That being it.

  44. Mercury  •  Aug 14, 2013 @6:17 am

    I'm shocked to learn that the Justice Dept. is claming more power for itself in the name of leniency, rationality and fairness.

    I think this meshes well with my ongoing prediction that when pretty much everything is illegal in some way, shape or form, selective enforcement will make legal/state authority indistinguishable from a dictatorship.

  45. nlp  •  Aug 14, 2013 @6:29 am

    Pulling off in a new direction, Holder also urged states to reduce sentences. A couple of years ago the citizens of Massachusetts pushed through a new law stating that possession of less than one ounce of marijuana would be a citation offense: rather like a speeding ticket. (The police and DAs fought this like crazy, insisting that we would shortly be murdered in our beds because we were allowing criminal acts, but we just ignored them and pushed through the ballot measure).

    The ballot measure was hailed by liberals and conservatives alike; the liberals because it meant that teenagers would not have a felony on their records for possession of a tiny amount of marijuana, and the conservatives because we no longer had to pay taxes to arrest, charge, try and imprison a bunch of teenagers who were holding a tiny amount of marijuana.

    Have many other states enacted similar measures? I've been wondering what effect such changes might have on Federal courts.

  46. Sertorius  •  Aug 14, 2013 @6:31 am

    Ken,

    Where I practice, the feds have very little involvement in run of the mill drug cases. So to me, this seems a public relations stunt. Defendants with minimal criminal histories and no gang ties just aren't in federal court very often on drug charges.

    Is it different where you practice? I'd love to think this policy would actually make a difference somewhere.

  47. Josh C  •  Aug 14, 2013 @7:28 am

    @Ambrose,

    Per Ken's premise, "Jane knows the package contains drugs."

  48. Xenocles  •  Aug 14, 2013 @7:31 am

    Wow, James. You must be doing that trolling self-parody thing again.

  49. Ambrose  •  Aug 14, 2013 @7:41 am

    @Josh C
    Thanks. I misread entirely, thinking it said "doesn't". Trying to do too many things at once, I guess.

  50. Ken White  •  Aug 14, 2013 @7:53 am

    Ken,

    Where I practice, the feds have very little involvement in run of the mill drug cases. So to me, this seems a public relations stunt. Defendants with minimal criminal histories and no gang ties just aren't in federal court very often on drug charges.

    Is it different where you practice? I'd love to think this policy would actually make a difference somewhere.

    Federal drug prosecutions vary massively from district to district, and over time. This policy is more likely to have an effect in the big districts and in districts that tend to serve as drug hubs and in districts that have the staff to prosecute a lot of cases. For instance, I'd anticipate it being used a fair amount in CDCA and SDCA because both of those districts are drug hubs and prosecute a fair number of lower-level drug mules and mopes.

  51. Ken White  •  Aug 14, 2013 @7:54 am

    One question remained in my mind though, as a total non-lawyer who's read just enough books to be dangerous.
    In the "Jane Doe" example above, wouldn't mens rea figure into the equation at all?
    I know as a defense lawyer, you're probably laughing at my naivete, but it seems to me you should have to have intended to do something wrong to be guilty of it…

    Not as I understand your question. Jane Doe only has to know that she is possessing some sort of illegal drug and intend to give it to someone else; that satisfies the elements of the crime. She need not specifically intend to break the law.

  52. Anonymous Coward  •  Aug 14, 2013 @7:59 am

    Another excellent article from Ken. These things are important for the people to understand, and it's scary that only through his sense of public service do I get this understanding.

  53. Sertorius  •  Aug 14, 2013 @8:08 am

    @Ken – Thanks for the reply!

  54. Quiet Lurcker  •  Aug 14, 2013 @8:41 am

    I'm very highly troubled by this information, for two reasons.

    First, this increase in prosecutorial discretion has the potential to throw the entire justice system open to inconsistencies, which to my mind flies in the face of a basic tenet of law enforcement and justice, namely due (or is it proper?) notice. Basically, that the defendant has a right to know a) what he/she did wrong and b) (at least approximately) the consequences of his/her act.

    Second, and far more troubling, is that Eric Holder is – again – effectively side-stepping the dictates of the People (18th century meaning) through their duly elected leaders, instead of living up to the requirements imposed on him by the oath he swore on taking the office of Attorney General.

  55. perlhaqr  •  Aug 14, 2013 @8:53 am

    How many doses is it? That depends on which meth addict you ask.

    Interpolating from Patients I Have Known, I'm thinking that's about 2,000 serious user doses, and closer to 4,000 "recreational" doses. (300 mg and 150 mg respectively.)

    That's presuming actual "Breaking Bad" quality crystal meth. Obviously, one would 'need' more of a lower quality drug.

  56. N. Easton  •  Aug 14, 2013 @9:35 am

    In an unequal society, discretion tends to magnify rather than reduce injustice.

    Basically, I'm with the people upthread who think this is just going to be used to increase the difference in prosecution depending on whether the defendant is a pretty young white girl ala Orange is the New Black, or a minority with a scary first name.

  57. N. Easton  •  Aug 14, 2013 @9:41 am

    I mean, imagine trying to get your enhancements waived if you're a black guy named Mohammed. Good luck!

  58. Stephen H  •  Aug 14, 2013 @10:54 pm

    I'm curious (insert joke here). What proportion of US defendants plead guilty simply because they cannot afford to face a jury of their peers? And when I refer to "cannot afford" I mean either money-wise, or because instead of a six month jail time plea-bargain they would be gambling against ten to twenty years.

    Do prosecutors threaten to throw the book at people in order to make their own lives simpler? If so, then surely the plea bargaining system is unjust.

  59. Fnord  •  Aug 15, 2013 @4:51 am

    Very informative description of the issue.

  60. Federale  •  Aug 15, 2013 @12:26 pm

    By poorhouse mean stupid? They usually go together.

  61. Manatee  •  Aug 15, 2013 @1:34 pm

    @N. Easton:

    I find it adorable that you think the black guy named Mohammed is going to survive all the way to trial.

  62. Flip  •  Aug 15, 2013 @4:51 pm

    Thanks for writing this excellent piece Ken. As a non-lawyer I only ever heard about mandatory minimums from watching 'The West Wing' and now I finally understand what the phrase refers to. Learned something new…

  63. James Pollock  •  Aug 18, 2013 @8:33 pm

    "I find it adorable that you think the black guy named Mohammed is going to survive all the way to trial."

    I'll see your black guy named Mohammed and raise you a defendant named "Mohamed Mohamud".

    http://www.cnn.com/2013/01/31/justice/us-terror-conviction

  64. Oliver Wendel Douglas  •  Aug 23, 2013 @8:04 am

    Some time ago, when I was an Assistant United States Attorney, I started handling cases the exact way that AG Holder now proposes. The case memos and plea memos went through without a glitch, until someone decided to actually read one of them. Guess what-I got in trouble and was referred to the Office of Professional Responsibility for "unprofessional conduct." The fact that I had official, written authorization for my case handling was no justification,nor did the supervisors who approved the pleas get in trouble. Just me, the guy standing in front of the judge and looking at the defendant. I retired before they could do anything and had the pleasure of telling the OPR lawyer never to call me again or I would file a complaint with the Inpsector General for DOJ and my local police. DOJ used to be an honorable place to work-believe it or not Ed Meese was the best AG I ever served under. He let you do your job and do it the fair and just way. Before Meese, Griffin, not so bad. Civilletti, thought he was all that and a bag of chips. Smith, at least he did not meddle. Thornberg was a joke-he began running for President the minute he took the oath. The only person you'd ever see who could strut while sitting down. His loss in the Senate race was the best example of mixed feelings (at least for Republicans), you know: your worst enemy going over a cliff in your new Cadillac. Barr was an unimaginative bureaucrat. Reno was living proof that the only thing a Harvard degree was hard evidence of was that the holder (no pun intended) had been in Cambridge, Mass at some point in her life. Her aides imported from FLorida did not serve her well, either. Ashcroft-eh, not so bad, as least for the peons. Gonzalez a disaster-how could he take the bar exam and remember to breath at the same time. Mukassey in all honesty was all right-actually better than alright. He fixed a damaged agency. Holder gives a bad name to empty suits. My only question about him is where is the place in his back where the ventriloquist sticks his hand? As already stated, I am now long retired. No more DOJ computers with monitoring of keystrokes and retention of every single email and voice mail. I feel real bad for my friends.

  65. Addie Byers  •  Aug 23, 2013 @3:23 pm

    How does this affect federal offenders that have already been sentence

  66. Writer  •  Aug 28, 2013 @4:53 pm

    Thank you for this exceedingly well written and thorough analysis.

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