Sequestration Silver Lining? Holder Refines Charging Policy for Mandatory Minimums

Attorney General Eric Holder issued a memo today to U.S. Attorneys refining the charging policy for mandatory minimum cases in recognition that "[w]e must ensure that our most severe mandatory minimum penalties are reserved for serious, high-level, or violent drug traffickers"; "[l]ong sentences for low-level, non-violent drug offenses do not promote public safety, deterrence, and rehabilitation"; and "rising prison costs have resulted in reduced spending on criminal justice initiatives . . . ."
While prosecutors must still evaluate whether a defendant is eligible for any statutory mandatory minimum statute or enhancement, prosecutors should decline to charge the quantity necessary to trigger a mandatory minimum sentence if the defendant meets the following criteria:

1) conduct does not involve violence, possession of a weapon, trafficking of drugs to or with minors, or the death or serious bodily injury of any person;

2) not organizer, leader, manager or supervisor of others;

3) no significant ties to large-scale drug trafficking organizations, gangs, or cartels; and

4) no significant criminal history (defined as normally meaning three or more criminal history points)

The memo states that, if the prosecutor does not have enough information regarding whether defendant meets these criteria, the prosecutor can file charges involving mandatory minimum statutes. Later, to avoid the mandatory minimum, the prosecutor could ask the grand jury to supersede the indictment, the defendant could plead guilty to a lesser included offense, or the defendant could waive indictment and plead guilty to a superseding information.

This policy, though, won’t change the quantity that will be the base of the Sentencing Guidelines calculation.

The memo also applies similar criteria to deciding whether to file an information pursuant to 21 U.S.C. § 851 for a recidivist enhancement.

In an NPR interview, Holder commented that he thinks "there are too many people in jail for too long, and for not necessarily good reasons." He also supports legislative efforts to change mandatory minimum laws, and the Senate Judiciary Committee will hold a hearing on mandatory minimum laws next month.