The Holder Memo: Is It a Double-Edged Sword?

February 6, 2014
By Hanging Out with Carl Gunn


  • The Attorney General’s memo cautioning against the indiscriminate use of mandatory minimums contains conflicting language about whether it applies only to defendants who plead guilty or also those who go to trial.
  • A recent Human Rights Watch report shows how mandatory minimums are used to coerce defendants into pleading guilty and giving up their constitutional rights.
  • Think about using this report and the helpful language in the Attorney General’s memo to persuade your prosecutor to forego mandatory minimums even in the cases where your clients go to trial.


One of the positive developments I spoke of in last week’s post was Attorney General Holder’s memo directing prosecutors to be more discerning in their decisions about whether to charge mandatory minimum quantities and/or file 21 U.S.C. § 851 enhancements. It’s the one change that’s already taken effect, though it remains to be seen how it will be applied.

The memo is unclear in one important respect, unfortunately. That’s in whether the Attorney General’s directives apply only where the defendant is willing to enter a plea. On one, more hopeful, side of the coin, the memo, which I’m attaching again here, directs prosecutors to “decline to charge” the mandatory minimum quantity if the defendant meets the listed criteria. It goes on to state, similarly, that “[i]f information sufficient to determine that a defendant meets the above criteria is available at the time initial charges are filed, prosecutors should decline topursue charges triggering a mandatory minimum sentence.” (Emphasis added.) This suggests the decision does not depend on whether the defendant pleads guilty.

On the other, less hopeful side of the coin, is language which follows the language just quoted:

However, if this information is not yet available, prosecutors may file charges involving these mandatory minimum statutes pending further information and a determination as to whether a defendant meets the above criteria. If the defendant ultimately meets the criteria, prosecutors should pursue a disposition that does not require a Title 21 mandatory minimum sentence. For example, a prosecutor could ask the grand jury to supersede the indictment with charges that do not trigger the mandatory minimum, or a defendant could plead guiltyto a lesser included offense, or waive indictment and plead guilty to a superseding information that does not charge the quantity necessary to trigger the mandatory minimum.

(Emphasis added.) The emphasized language in this passage makes it sound like the decision turns – at least possibly – on a defendant’s decision to plead guilty.

The potential problem and unfairness this creates brings to mind a report by Human Rights Watch which one of the attorneys here at our firm brought to my attention and which is linked here. It’s titled “An Offer You Can’t Refuse: How US Federal Prosecutors Force Drug Defendants to Plead Guilty” and is a lengthy study of how mandatory minimums are used to coerce drug defendants into pleading guilty and severely punish them if they don’t plead guilty. Among the findings and conclusions noted in the report’s introductory summary are:

• The average sentence imposed on federal drug defendants who go to trial was three times higher than the average sentence imposed on those who plead guilty.

• Only three percent of federal drug defendants go to trial, probably because, as acknowledged by one former prosecutor and senior Department of Justice official quoted in the study, the threat of higher sentences puts “enormous pressure [on defendants] to plead.”

• Prosecutors believe a defendant’s insistence on going to trial is a perfectly legitimate reason to pursue an increased sentence, even when it is wholly disproportionate to the offense, and they rationalize the difference in sentences as not a “punishment” of the defendant who goes to trial, but a “reward” for the defendant who decides to plead guilty.

The study notes that the mandatory minimum sentencing laws are a large part of the problem. It notes that “the power of federal prosecutors in drug cases is strengthened by mandatory sentencing laws that curtail the judiciary’s historic function of ensuring that the punishment fits the crime.” It goes on to point out that “[p]rosecutors, in effect, sentence convicted defendants by the charges they bring.” It then offers the following examples:

In fiscal year 2012, 60 percent of convicted federal drug defendants were convicted of offenses carrying mandatory minimum sentences. (Footnote omitted.) They often faced sentences that many observers would consider disproportionate to their crime. An addict who sells drugs to support his habit can get a 10-year sentence. Someone hired to drive a box of drugs across town looks at the same minimum sentence as a major trafficker caught with the box. A defendant involved in a multi-member drug conspiracy can face a sentence based on the amount of drugs handled by all the co-conspirators, even if the defendant had only a minor role and personally distributed only a small amount of drugs or none at all.

The study does note Attorney General Holder’s new policy memo, but suggests the same ambiguity I suggest above. While not discussing the specific language of the memo, it reads the memo as “contain[ing] easily-exploited loopholes” and “not prohibit[ing] prosecutors from pursuing harsh sentences against a defendant who refuses to plead.” The study then goes on to make two recommendations. First, it recommends that Congress simply eliminate mandatory minimums, which provides more ammunition to use in support of the Smarter Sentencing Act I talked about in last week’s post. Second, it recommends that there be “just sentences as a Department of Justice goal for all drug offenders regardless of whether they plead guilty or go to trial.”

Perhaps the foregoing can be used to shame your prosecutor in a case where your client just wants to have his day in court. As suggested by the name of the organization, Human Rights Watch views this as a human rights issue, and it seems like that’s a very fair view. The constitutional rights that we recognized in our Constitution over 200 years ago shouldn’t be penalized by mandatory minimum laws that everyone – including the Department of Justice – agrees are grossly unjust and unfair in at least many cases if not all cases.