Following up on his recent proposals to reduce the use of mandatory minimum sentences in federal drug crimes involving non-violent, low-level drug offenders, United States Attorney General Eric Holder has now issued a new directive to all Assistant United States Attorneys advising them how to apply the new policies retroactively.
First, he ordered that the new policies should be applied to all defendants who have been charged with such drug crimes and are awaiting an adjudication.
Second, he encouraged prosecutors to seek relief from the harsh mandatory minimum sentences even in cases where a defendant previously entered a guilty plea and admitted to facts triggering a mandatory minimum sentence. The key it now appears is to judiciously use mandatory minimums in federal crimes drug law cases.
As we noted at the time, the efficacy of those initiatives, while promising, will depend to a great degree on the good will of the Assistant U.S. Attorneys who have virtually unfettered authority to select what charges should be filed, and on the DOJ's vigilant policing of those charging decisions.
As its title infers, it provides guidance on the all-important issue of whether the policies announced in the Holder Memorandum were designed to be applied prospectively only - or whether they would also apply retroactively. And, to head off what would probably be a flood of lawsuits on that issue, the August 29 Memorandum has directed that the U.S. Attorneys follow these rules:
For cases charged and awaiting adjudication of guilt: the policy is applicable to all such cases;
For cases in which guilt has been adjudicated and sentence has not yet been imposed: the policy may be applied in the discretion of the prosecutor, and prosecutors are encouraged to apply the policy in guilty-plea cases where legally and practically feasible; and
For cases in which sentence has been imposed: the policy is not retroactively applicable.
While the use of the phrase "where legally and practically feasible" in the second of those rules leaves a gaping hole that will certainly invite challenges, at least the DOJ has moved quickly to prevent the type of chaos that reigned after Congress enacted the Fair Sentencing Act of 2010 without addressing the retroactivity issue in that federal crimes debacle.