Has the Holder Memorandum Begun to Affect Mandatory-Minimum Sentences?

Back in August, Attorney General Eric Holder issued a memorandum to line prosecutors throughout the Department of Justice directing them to tamp down their use of mandatory-minimum sentences.

In particular, the memorandum instructs prosecutors to do two things. First, they are not to charge a quantity of drugs that will trigger a mandatory-minimum sentence in the first place. This follows the Supreme Court’s recent decision in Alleyne v. United States, which held that any fact that imposes or raises a mandatory-minimum sentence is considered an “element” of the offense that must be charged in the indictment and proven to a jury beyond a reasonable doubt. See 133 S. Ct. 2151 (2013). Second, prosecutors are to refrain from charging a defendant’s prior felony drug convictions in ways that can double the mandatory minimum (from 5 to 10 years, for example). See 21 U.S.C. 851.

To qualify cases for such treatment, prosecutors are to consider the following factors, among others:

  1. Whether the defendant’s conduct involved violence, the credible threat of violence, the possession of a weapon, any death or serious bodily injury, or the trafficking of drugs to or with minors;
  2. Whether the defendant was an organizer, leader, manager, or supervisor within a criminal organization;
  3. Whether the defendant had significant ties to large-scale trafficking organizations, gangs, or cartels; and
  4. Whether the defendant had significant criminal history.

Finally, prosecutors are advised to consider whether a given case serves a substantial federal interest, and if not, whether it should be prosecuted federally at all.

The new policy applies not just to new cases but to pending cases that await sentencing. Ultimately, it may affect hundreds of defendants nationwide. According to the report, the preliminary returns are mixed. Some prosecutors are following the memorandum; others are not. But already, there are reports of prosecutors who are taking steps to resolve cases in ways that meet the letter and spirit of the Attorney General’s memorandum. Stay tuned.

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