On August 12, following a speech to the American Bar Association, Attorney General Eric Holder issued a memorandum announcing a change in Department of Justice policy with respect to the charging of offenses that carry mandatory minimum sentences as well as to the pursuit of recidivist enhancements in certain drug cases. As the New York Times reports:
The policy applies to defendants who meet four criteria: their offense did not involve violence, the use of a weapon, or selling drugs to minors; they are not leaders of a criminal organization; they have no significant ties to large-scale gangs or drug trafficking organizations; and they have no significant criminal histories.
While the policy shift was widely lauded, the memorandum raised a number of questions concerning its application, particularly to then existing cases. Today, the Attorney General issued a new memorandum offering guidance regarding application of the August 12 memorandum to cases charged before that date. Again, from the Times:
In cases where a defendant has been charged but guilt has not yet been determined, prosecutors will be directed to file replacement criminal complaints to eliminate references to specific quantities of drugs that would trigger a mandatory minimum sentence were the defendant to be convicted[…].
Mr. Holder’s memorandum says that for cases in which a defendant has already been found guilty but no sentence has yet been imposed, prosecutors have discretion about whether to apply the new policy.
They are “encouraged to apply the policy in guilty-plea cases where legally and practically feasible,” he wrote, but they should generally “not seek relief for a defendant” who chose to go to trial. The memo portrays the policy as an exercise of prosecutorial discretion and directs Justice Department officials to fight any motion by a convicted but not yet sentenced defendant to seek relief without the government’s consent on the basis of the new policy.
The memo also says “prosecutors should not disturb the sentence in a case in which sentence has been imposed.