Did You Get the Memo? Eric Holder’s New Policies and Initiatives on Federal Drug Sentencing & Federal Charges

Oct 2, 2013

Federal drug sentencing has been given a long-awaited makeover by the issuance of Eric Holder’s Memorandum and Guidelines to Federal Prosecutors in August of this year. The new policy should help certain drug offenders avoid mandatory minimum sentences in federal drug cases. Attorney General Holder also set forth “Federal Prosecution Priorities” pertaining to the charging of certain offenses in federal, versus state, court.

Citing to Alleyne v. United States, 133 S.Ct. 2151 (2013), the Holder Memo on Charging Mandatory Minimum Sentences (Aug. 12, 2013), reminded United States Attorneys that “any fact that increases the statutory mandatory minimum sentence is an element of the crime that must be submitted to the jury and found beyond a reasonable doubt.” Mr. Holder noted that because of this standard, the prosecutor’s discretion in charging mandatory minimum cases must be used with particularity and discretion. Specifically, Mr. Holder stated:

When making these individualized assessments, prosecutors must take into account numerous factors, such as the defendant’s conduct and criminal history and the circumstances relating to the commission of the offense, the needs of the communities we serve, and federal resources and priorities. Now that our charging decisions also affect when a defendant is subject to a mandatory minimum sentence, prosecutors must evaluate these factors in an equally thoughtful and reasoned manner.

With these thoughts in mind, he went on to write that “we now refine our charging policy regarding mandatory minimums for certain nonviolent, low-level drug offenders. We must ensure that our most severe mandatory minimum penalties are reserved for serious, high-level, or violent drug traffickers.” He even pointed out that mandatory minimum sentences have resulted in unduly harsh sentences for low-level offenders. Such sentences did not, and do not, promote public safety, deterrence, and rehabilitation, he emphasized.

Accordingly, prosecutors are now expected to give very close evaluation as to which cases ought to trigger mandatory minimum penalties. Factors to consider, according to Mr. Holder, are drug quantities, alleged violence or weapons, injuries, the defendant’s role in the offense (leader, organizer, or manager), ties to drug trafficking organizations, and the defendant’s criminal history. Notably, if such information is not available to the prosecutor at the time of charging, they are to refrain from including charges which trigger mandatory minimum sentences until further information is obtained. The defendant’s cooperation and acceptance of early responsibility are also factors to be assessed in recommending a sentence, urged Mr. Holder.

As for the applicability of these new guidelines, in another memo on August 29, 2013, Mr. Holder outlined when the policy applies:

● For cases charged and awaiting adjudication of guilt: the policy is applicable to all such cases.

● For cases in which guilt has been adjudicated and sentence has not yet been imposed: the policy may be applied in the discretion of the prosecutor, and prosecutors are encouraged to apply the policy in guilty-plea cases where legally and practically feasible.

● For cases in which sentence has been imposed: the policy is not retroactively applicable.

When applicable, this Holder memo noted that prosecutors are to again consider the specific facts and circumstances of the given case, the defendant’s criminal history (including whether it is remote, aberrational, or minimal) and the treatment of co-defendants. Mr. Holder urges a very individualized look at both the case and the defendant in each circumstance, instead of applying a generic, formulaic approach to the application of mandatory minimum sentences in drug cases. He also noted that prosecutors can seek relief from pleas triggering the mandatory minimums by negotiating new plea agreements with pleas to, for example, a Superseding Information which charges a drug offense without the pertinent quantity, with dismissal of the original indictment.

As for defendants convicted at trial, the theme is similar: discretion should be used to assess whether a particular defendant should not face the mandatory minimums and where the interests of justice require relief from the lengthy prison terms.

In yet another memo dated August 12, 2013, Eric Holder wrote on the subject of Federal Prosecution Priorities. There, he urged prosecutors to use their “limited resources” in a responsible manner; meaning, prosecutions that serve a substantial federal interest. A federal interest can include: no alternative prosecution, national security threats, protecting Americans from violent crime and financial fraud, and an assessment of district-specific criteria.

Alternatives frequently include state prosecutions, defendant serving a sentence for another offense with a distant release date, a preference for local law enforcement and local abilities, and whether Indian County can best address the criminal conduct. This memo is particularly relevant in districts, such as the Northern District of California, where we frequently see state-type offenses being charged and prosecuted in federal courts (firearms, drugs). Hopefully, with this memo, conduct which ought to rightfully be prosecuted in state courts (with potentially lower sentences) would remain in state courts. Moreover, for those facing prosecutions in state and federal court for the exact same conduct, such future double prosecutions should be avoided or greatly reduced.

These Holder memos seem to tap into existing research which shows that with respect to deterrence of crime, increases in punishment do not routinely reduce crime through deterrence mechanisms, particularly because the link between actual punishment levels and the perceptions of punishment levels is weak to nonexistent.

These new policies also recognize the injustice and draconian nature of the mandatory minimum sentences (for drug cases, these are in the 10-year, 20-year and life terms). Holder also cited to financial and social reasons for re-assessing the policies that have led to so many lengthy prison sentences for Americans; the United States leads the world in the percentage of its population behind bars. In a speech to the American Bar Association in San Francisco in August, AG Holder said that the United States accounts for just 5 percent of the world’s population, but incarcerates almost a quarter of the world’s prisoners. He noted that federal prisons are nearly 40 percent above capacity and that almost half of the inmates are serving time for drug-related crimes. At the federal level, the Bureau of Prisons comprises nearly one-third of the Justice Department’s Budget. Grim facts for a government in a shut down.

Time will tell how the prison population, the types of cases charged, and the length of sentence is affected by this so called “Smart on Crime” Initiative, which essentially aims to modernize the criminal justice system. Should common sense and reason dictate, we will see far fewer non-violent, low-level drug offenders behind bars for decades. The Department of Justice is seeking further sentencing reforms to address non-dangerous, ailing and elderly inmates.

The recognition of principles long known by the defense bar, regarding drug addiction, lack of deterrence, disparate sentences for minorities, and the consequences of convictions seems to finally be hitting home with the Justice Department. Everyone is anxious to see how these recent and upcoming policies will play out in the courts. Stay tuned…