DOJ Rescinds Previous Administration’s Policy on Sentencing in Federal Drug Cases

The policies of the U.S. Department of Justice (DOJ) regarding federal drug sentencing have gone through several major changes recently. Former Attorney General (AG) Eric Holder undertook a major overhaul several years ago, seeking to focus attention away from low-level drug offenses and onto major ones. In May 2017, however, AG Jeff Sessions rescinded Holder’s policy and issued a new memorandum directing federal prosecutors to “charge and pursue the most serious, readily provable offense.” The memorandum does not specifically mention drugs and drug-related offenses, but that is where it is likely to have the most far-reaching effects.

Federal sentencing guidelines derive, in part, from a list of factors established by Congress in 1984 that courts must consider when imposing a sentence. These include “the nature…of the offense and the…characteristics of the defendant,” the effect of the sentence on society at large, the need to maintain consistent sentencing practices for similar offenses, and “the need to provide restitution to any victims of the offense.” 18 U.S.C. § 3553(a).

A “mandatory minimum” sentence gives courts no discretion to adjust the sentence downward. Such sentences became particularly widespread with the Anti-Drug Abuse Act of 1986, Pub. L. 99-570 (Oct. 27, 1986). That law established lengthy minimum sentences for various drug offenses, such as 10 years for manufacturing, distributing, or possessing with intent to manufacture or distribute one kilogram of heroin or five kilograms of cocaine. 21 U.S.C. §§ 841(b)(1)(A)(i), (ii). According to the United States Sentencing Commission (USSC), 47.9 percent of all federal drug convictions in fiscal year 2015 involved an offense with a mandatory minimum penalty.

The Holder memorandum, officially titled “Department Policy on Charging Mandatory Minimum Sentences and Recidivist Enhancements in Certain Drug Cases” and issued on August 12, 2013, followed two important U.S. Supreme Court decisions regarding federal sentencing. In U.S. v. Booker, the court held that courts may only consider facts “admitted by the defendant or proved to a jury beyond a reasonable doubt” when imposing a sentence. 543 U.S. 220, 244 (2005). The court reached a similar holding in Alleyne v. United States, 570 US ___ (2013), which specifically addressed mandatory minimums.

Citing the Alleyne decision, the Holder memorandum directed federal prosecutors to reserve “our most severe mandatory minimum penalties…for serious, high-level, or violent drug traffickers.” Factors prosecutors should consider when deciding whether to charge a mandatory-minimum offense included whether the alleged offense involved a weapon or the use or threat of violence, whether the defendant was “an organizer, leader, manager or supervisor of others within a criminal organization,” whether the defendant had connections to larger criminal enterprises, and the defendant’s criminal history or lack thereof.

The Sessions memorandum, issued on May 10, 2017 and simply titled “Department Charging and Sentencing Policy,” overturns the Holder memorandum in simple and blunt terms. Whereas the Holder memorandum described factors prosecutors should consider before charging a mandatory-minimum offense, the Sessions memorandum effectively requires charging a mandatory-minimum offense whenever possible. It further requires supervisory approval for a prosecutor to deviate from this directive.

These blog posts are meant to be illustrative only. Unless expressly stated to the contrary herein, these matters are not the result of any legal work of Michael J. Brown, but are used to communicate a particular point of view. Michael J. Brown does not claim credit for any legal work done by any lawyer or law firm either generally or specifically, with respect to the matters contained in this blog.

Michael J. Brown is a board-certified federal crime attorney who has practiced in West Texas, defending people against charges in state and federal courts, for more than two decades. To schedule a confidential consultation with an experienced and knowledgeable advocate for criminal justice, contact us today online or at (432) 687-5157.

More Blog Posts:

“Fair Sentencing” Laws Eliminate Mandatory Minimum Sentences, Sentencing Disparities for Certain Drug Offenses, Texas Criminal Lawyer Blog, January 26, 2015

Clemency, Sentencing Reforms Offer Hope to Thousands of Nonviolent Drug Offenders Currently in Prison, Texas Criminal Lawyer Blog, July 23, 2014

Federal Judge Challenges Mandatory Minimum Sentencing Law After Appeals Court Reverses Him, Texas Criminal Lawyer Blog, November 25, 2013.

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