What’s So Great About The Drug Charging Memo?
By Mary Price | October 4, 2013 10:52 am

Those of us who chafe at the power over sentencing that mandatory minimums cede to prosecutors were nevertheless heartened when Attorney General Eric Holder announced in a speech to the American Bar Association (ABA) in August that he was directing prosecutors to avoid triggering drug mandatory minimum sentences in certain cases.

Holder told his audience that the Department of Justice (DOJ) will do its part to reserve severe mandatory minimum penalties for serious, high-level, and violent drug offenders. Such sentences for nonviolent and lower-level drug offenders, he argued, do little to protect the public or advance the aims of sentencing. Avoiding mandatory minimums, he said, which contribute to bloated prison costs and siphon funding from other DOJ priorities, will help the DOJ use its shrinking criminal justice dollars productively.

Undoubtedly, fewer people will be sentenced to mandatory minimums. Instead, in Holder’s words, they will “be charged with offenses for which the accompanying sentences are better suited to their individual conduct, rather than excessive prison terms more appropriate for violent criminals or drug kingpins.”

More symbolically, the announcement marked a tipping point, leading to a flurry of statements from likely and unlikely supporters of reform and culminating, for the moment at least, in a hearing in the U.S. Senate Judiciary Committee on the need for mandatory minimum reform.

The new charging instructions (the “Holder Memo”) issued the same day as Holder’s speech to the ABA, directed prosecutors to do their part to lessen reliance on mandatory minimums in two ways for defendants who meet a set of criteria. First, they should exclude charging a drug quantity when it would trigger a mandatory minimum, and second, they should forego using the recidivist enhancement under 21 U.S.C. sec. 851. (That enhancement operates to double mandatory minimums for defendants with one prior drug felony and impose a life sentence for certain defendants with two or more.) A few weeks later, Holder announced that the new charging policy would apply to pending, not yet sentenced cases.

This welcome news led to the obvious question: just how significant is the Holder memorandum? How many defendants would get lower sentences? Fortunately, Paul J. Hofer, policy analyst for the Federal Public and Community Defenders, answered the question by applying the Holder Memo’s mandatory minimum charging criteria (he could not assess the impact on the sec. 851 cases) to the 15,500 defendants convicted under a statute carrying a drug mandatory minimum in FY 2012.

Hofer found that of the 6,780 defendants who appeared to meet the criteria, most had already received relief from the mandatory minimum either through the drug safety valve or by way of a prosecutor’s motion based on the defendant’s substantial assistance. Excluding them, Hofer estimated that 530 additional defendants would likely have received a lower sentence if the Holder Memo had been in effect and fully implemented by line prosecutors in 2012.

That is encouraging news. While the number of people who will benefit is not that significant and we do not yet know to what extent the new policy will affect individual sentences, some reductions should be quite significant. For example, Jacob Sullum at Reason.com cites one defense attorney who estimated reductions averaging 36 months or more. But that is the case only if prosecutors embrace the new charging policy. It is, after all, a grant of discretion, and prosecutors differ significantly in their approach to charging cases.

Once again, the Federal Defenders have provided insight, this time into how federal prosecutors are exercising their discretion. So far, it appears that fealty to the Holder Memo is mixed: some prosecutors are disregarding it, and some are following it. Of the latter, we were particularly heartened to hear how AUSAs are responding in the Middle District of Florida, one of the toughest districts in the country (from our perspective). Assistant Federal Public Defender Rosemary Cakmis shared these stories with us:

  • A defendant was preparing to plead guilty to a charge that carried a five-year mandatory minimum, when the Holder Memo was issued. The defense attorney moved to continue the hearing, and the Assistant U.S. Attorney agreed to accept a plea to the lesser included offense with no mandatory minimum. The change could shave as much as four years off the sentence.
  • The defendant pled guilty to a methamphetamine charge with a mandatory minimum before the Holder Memo. After the Holder Memo, the Assistant U.S. Attorney agreed to permit the defendant to withdraw the guilty plea, and plead guilty to a lesser included methamphetamine charge without a mandatory minimum. The defense attorney has two other clients in a similar situation who are getting similar treatment.
  • The defendant was sentenced below the mandatory minimum before the Holder Memo, and the government appealed. After the Holder Memo, the government reconsidered and filed a motion to dismiss its appeal.
  • The defendant was a career offender, and the AUSA had noticed sec. 851 enhancements. The defendant went to trial and was convicted. The AUSA subsequently withdrew the sec. 851 enhancements because, he said, the defendant did not fit the Holder Memo criteria for charging sec. 851 notices. The sentence fell from about 35 years to about 10 years.

If AUSAs follow the good example of the U.S. Attorney’s office in the Middle District of Florida, judges will regain the authority to assess a defendant and impose a sentence that is proportionate and individualized, rather than unduly harsh and automatic. Of course, that ought to be standard operating procedure in every criminal sentencing. But as long as there are mandatory minimum sentencing laws on the books, it won’t be.

Only Congress has the real power to fix mandatory minimum sentencing, and Holder knows that. In his speech to the ABA, he pointed to bipartisan legislation that would give judges more discretion and could “save our country billions of dollars while keeping us safe.” He pledged that he and President Obama would work with both parties to promote mandatory minimum reform.

Attorney General Holder’s memo laid a foundation for lasting reform. Now Congress must build on it.

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