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The New Federal Drug Charging Policy: Breaking it Down.
On August 13, 2013, the Attorney General of the United States, Eric Holder, announced new
charging policies for federal prosecutors to follow in cases involving mandatory minimum
sentences for drug offenses. The new policies are designed to reduce the number of people
charged with crimes that carry mandatory minimum sentences and to lower sentences for repeat
offenders. Here we explain what the policy does and does not do and how it could affect federal
drug cases.
1. A little background: The new policy affects two kinds of federal drug cases.
a. First, are the simple mandatory minimum cases. A person charged and convicted
of a drug case involving a specified quantity of drugs faces a pre-set mandatory
minimum sentence. For example, a person charged and convicted of trafficking 28
grams of crack cocaine faces a five-year mandatory minimum, and if the quantity is
280 grams, a ten-year mandatory minimum.
b. Second, are the sec. 851 recidivism cases. The federal drug statute mandates
enhancements that can (1) double the mandatory minimum if the defendant had a
prior drug felony and (2) require life in prison if the defendant had two prior drug
felonies. The enhanced mandatory minimum can only be imposed if the prosecutor
files an “851 notice” before trial or a guilty plea, telling the court and defendant they
will seek the enhanced sentences. The name “851 notice” comes from the statute that
requires the notice: 21 U.S.C. § 851.
2. What did Eric Holder tell federal prosecutors to do?
a. He told them what to do in simple mandatory minimum cases:
i. When a defendant is charged with a federal drug trafficking crime, the
prosecutor should first determine (a) the drug quantity and (b) whether the
drug quantity would trigger a mandatory minimum sentence. If so,
ii. Then, the prosecutor should look at a list of criteria the defendant must
meet:
1. The defendant’s (and in some cases the defendant’s co-conspirators’)
conduct did not involve violence, the credible threat of violence,
weapon possession, sale to or use of a minor, or anyone’s death or
serious bodily injury;
2. The defendant was not an organizer, leader, manager, or supervisor;
3. The defendant did “not have significant ties to large-scale drug
trafficking organizations, gangs, or cartels”;
4. The defendant does not have significant criminal history (generally
more than two criminal history points, as calculated under the
federal sentencing guidelines).
iii. If all the criteria are met, the prosecutor should not state the drug quantity in
the indictment.
iv. If the defendant is convicted, the judge cannot impose the drug mandatory
minimum and will instead be able to sentence the defendant according to the
advisory sentencing guidelines – generally resulting in a shorter sentence.
b. He told them how to handle 851 cases:
i. If the defendant has one or more prior felony drug convictions, the prosecutor
should not seek the 851 enhancement unless the defendant’s conduct makes
such a severe sentence appropriate.
ii. To decide whether to apply the 851 enhancement, the prosecutor should ask:
1. Was the defendant an organizer, leader, manager or supervisor;
2. Was the defendant involved in violence or the threat of violence;
3. Does the defendant have a history of violence or prior conviction for
“serious offenses”;
4. Does the defendant have “significant ties to large-scale drug
trafficking organizations, gangs, or cartels”;
5. Would the 851 enhancement create “a gross sentencing disparity” with
similar or more serious co-defendants;
6. What other factors make the offense more or less serious?
iii. If the prosecutor decides not to file the 851 notice, the judge cannot
impose the enhanced mandatory minimum.
3. Why did the Attorney General change the policy?
Attorney General Holder said that the most severe sentences should be reserved for
serious, high-level, or violent drug offenders. Mandatory minimums lead to sentences
that are too harsh and cause disparity, including racial disparity. Long mandatory
sentences do not promote public safety, deter crime, or aid rehabilitation. Finally, long
sentences contribute to higher prison costs, and money has to be shifted from crime
fighting, prosecution, and prevention just to keep drug defenders locked up.
4. How does it work if the defendant meets the criteria but the case is already underway?
There are a variety of ways that prosecutors can avoid the mandatory minimum in cases
where defendants are already facing them. Here are some of the ways the Attorney
General suggested to prosecutors to handle cases already underway.
a. In cases where the defendant has pled guilty but has not been sentenced,
prosecutors “are encouraged to seek relief from the mandatory minimum sentence.”
i. The prosecutor can return to the Grand Jury (which issues indictments) and
ask it to issue a new indictment which does not include the mandatory
minimum drug quantity;
ii. The defendant can plead guilty to a “lesser included offense” that does not
include the mandatory minimum drug quantity;
iii. In cases where the defendant has already pled guilty and faces a mandatory
minimum, the prosecutor can ask the court to dismiss the indictment and
negotiate a plea agreement in which the defendant pleads to a lesser included
offense;
iv. In 851 cases, the prosecutor may be able to ask the court for permission to
withdraw the 851 notice.
b. In cases where the defendant has been convicted at trial but has not yet been
sentenced, prosecutors should generally not seek a lower sentence. There may be
unusual cases where justice would be better served, such as to avoid disparity among
co-defendants. In those cases, prosecutors could use the measures outlined above in
part (a).
5. Can defendants ask the court to remove the mandatory minimum if the prosecutor
won’t?
No. Defendants can only benefit from the new policy if the prosecutor decides to seek
relief from the mandatory minimum. Holder has told prosecutors to oppose any motion
initiated by a defendant without the government’s consent to seek relief from the
mandatory minimum.
6.
Who cannot benefit from the Attorney General’s new charging instructions?
a. Defendants who are not in federal court;
b. Defendants who are not facing drug mandatory minimum sentences; and
c. Defendants who have already been sentenced.
7. How many people might be affected by the new charging instructions?
According to one estimate by the Federal Public and Community Defenders, if the new
charging policy had been in effect in 2012, and had been fully implemented by
prosecutors, 530 people would have avoided simple mandatory minimum sentences
(estimates could not be done for 851 cases).
Last updated 10-2-13