I have received a huge number of calls and emails from people asking me how the memo issued by Attorney General Eric Holder affects their loved one’s case. For almost all of them, my answer is, unfortunately, “It doesn’t.”

The Holder memo these people are referring to is the memo dated August 12, 2013. Click here for the text of that memo.

The important thing to know about this memo is that it does almost nothing. When it was first published, many greeted it with applause. However, a close reading of the memo reveals that, first, Attorney General Holder is reminding the U.S. Attorneys of duties they already had (not truly giving them new discretion), and, second, when the rubber meets the road, it’s still up to prosecutors to exercise their discretion. It sounded great at first blush, and the press release sounded even better. But the truth is it is much ado about nothing, and almost nobody is benefitting from it. Here’s why.

Federal prosecutors have always had broad discretion as to which statute to charge a defendant under. And because federal prosecutors believe that the people they are charging are bad people, and because they believe bad people should be in prison for as long as possible, and because it puts them in the best bargaining position, and because it gives them the most hope of persuading a defendant to cooperate against others, they have, generally, charged defendants in federal cases under the statute that assigns the longest possible mandatory sentence.

But they have always had the discretion to charge defendants under lower mandatory minimum statutes, or statutes with no mandatory minimum at all.

The Holder memo and the much-lauded press release made it sound as if he was, for the first time ever, granting to federal prosecutors the right to choose to charge federal criminal defendants under the statutes with lower mandatory minimum sentences. It just ain’t so. They have always had this discretion.

The memo and the press release made it sound like the issuance of the memo would actually result in a ground-breaking change to the way things are done. This, too, just ain’t so. Those of us seeing how things are happening in the trenches can see that federal prosecutors are not using this discretion they have always had any more often now than they ever did before. It just has not changed, in any significant way, the way indictments are drafted.

Finally, there is incredible confusion over whom the memo really is supposed to help, and thus the questions from the family and friends of those currently serving their federal prison sentences. This memo does not even purport to help anyone who has already been sentenced.

The way the memo reads, it is an instruction to all U.S. Attorneys to remind them that it is their responsibility to assess, on a case-by-case basis, whether to indict defendants with charges that carry a mandatory minimum sentence if they should be convicted.

Attorney General Holder recommended that prosecutors not bring charges that trigger a mandatory minimum if the defendant meets ALL of the following criteria: the defendant’s conduct (relevant to the criminal case) did not involve violence or selling drugs to minors; the defendant does not lead others in a criminal organization, nor is tied to a drug cartel; and the defendant does not have a significant criminal history (as a rule of thumb, but not always, that means they have fewer than three criminal history points).

Probably because of the confusion over retroactivity, Holder then (on August 29, 2013) issued a second memo, clarifying that this policy change is not retroactive if a defendant has already been sentenced, but if not, he encourages prosecutors to apply the new policy if feasible, and clarifies that this is always a matter of prosecutorial discretion.

What federal criminal law practitioners see in these memos is a political move designed to make the administration look good in a press release. But we, along with many others, long to see more justice in sentencing and hope that it comes to pass. In the meantime, a lot of people whose loved ones are actually affected by the injustices of mandatory minimums are being led to believe that Attorney General Holder and the current administration are actually making strides toward justice for the downtrodden, and it just ain’t so.


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