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.

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