The Eric Holder Memorandum on Mandatory Minimum Sentences, Explained

Print This Post

You may also like...

76 Responses

  1. SirWired says:

    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.

  2. Mike says:

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

  3. Vince Clortho says:

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

  4. Clark says:

    @Ken White

    tl;dr

    LOL! Genius.

  5. Clark says:

    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" ?

  6. Anton Sirius says:

    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.

  7. Ken White says:

    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.

  8. ChicagoTom says:

    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

  9. Darryl says:

    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.

  10. Ken White says:

    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.

  11. 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."

  12. Kevin says:

    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.

  13. Erwin says:

    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

  14. Chris says:

    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?

  15. ChicagoTom says:

    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??

  16. John Thacker says:

    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.

  17. Chris says:

    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.

  18. Dan Weber says:

    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.

  19. grouch says:


    "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.

  20. Richard says:

    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?

  21. Ken White says:

    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.

  22. Ken White says:

    "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."

  23. Allen says:

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

  24. Ken White says:

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

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

  25. Jonathan says:

    Ken,

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

  26. James Pollock says:

    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.

  27. Steven H. says:

    @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."

  28. Alistair says:

    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.

  29. barry says:

    'optional-mandatory', another new one.

  30. Trent says:

    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.

  31. James Pollock says:

    "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".

  32. Xenocles says:

    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…

  33. Andre says:

    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?

  34. Zack says:

    @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.

  35. En Passant says:

    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.

  36. James Pollock says:

    "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.

  37. MCB says:

    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.

  38. Xenocles says:

    @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.

  39. James Pollock says:

    "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.

  40. Anony Mouse says:

    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.

  41. Ambrose says:

    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…

  42. azazel1024 says:

    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.

  43. Mercury says:

    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.

  44. nlp says:

    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.

  45. Sertorius says:

    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.

  46. Josh C says:

    @Ambrose,

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

  47. Xenocles says:

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

  48. Ambrose says:

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

  49. Ken White says:

    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.

  50. Ken White says:

    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.

  51. Anonymous Coward says:

    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.

  52. Sertorius says:

    @Ken – Thanks for the reply!

  53. Quiet Lurcker says:

    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.

  54. perlhaqr says:

    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.

  55. N. Easton says:

    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.

  56. N. Easton says:

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

  57. Stephen H says:

    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.

  58. Fnord says:

    Very informative description of the issue.

  59. Federale says:

    By poorhouse mean stupid? They usually go together.

  60. Manatee says:

    @N. Easton:

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

  61. Flip says:

    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…

  62. James Pollock says:

    "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

  63. Oliver Wendel Douglas says:

    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.

  64. Addie Byers says:

    How does this affect federal offenders that have already been sentence

  65. Writer says:

    Thank you for this exceedingly well written and thorough analysis.

  1. August 14, 2013

    […] has The Eric Holder Memorandum on Mandatory Minimum Sentences, Explained | Popehat He opens, […]

  2. August 14, 2013

    […] Popehat, Ken White provides a clear, if lengthy, explanation of the mechanics of charging. Yet, the […]

  3. August 14, 2013

    […] Ken White at Popehat has an excellent post that's extremely helpful for those who would like to understand the Holder memo and federal sentencing: The Eric Holder Memorandum on Mandatory Minimum Sentences, Explained […]

  4. August 15, 2013

    […] reactions, and cautious praise for the changes, from Tim Lynch at Cato, Ken at Popehat, and J.D. Tuccille at Reason (and more on lawmakers' […]

  5. August 15, 2013
  6. August 15, 2013

    […] the new DOJ policy on mandatory minimum sentences for drug offenses. See, e.g., these posts on popehat, volokh, and simple justice. What many commentators are neglecting, however, is the dubious […]

  7. August 17, 2013

    […] relaxing enforcement of drug laws (which I generally agree with, but not this way). […]

  8. August 18, 2013

    […] Mandatory Minimums Explained […]

  9. August 19, 2013

    […] recommend they go easier on some defendants in some drug cases. Former federal prosecutor Ken White concluded of Holder's memo, "Great and terrible power, exercised with some lenience, is still great and terrible […]

  10. August 20, 2013

    […] if a bit too thorough, explanation of Holder's memo and the sentencing guidelines, read this Popehat post and for a more critical take, read Scott. […]