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Do You Still Have to Tell What You Know? The New Holder Memorandum on Mandatory Minimums

Attorney General Eric Holder has issued a new memorandum to all federal prosecutors regarding mandatory minimum sentences in narcotics cases. Mandatory minimums are triggered by drug type and quantity — for example, distribution of 28 grams of crack cocaine equals a mandatory minimum of five years in prison. There are currently two ways out from under the mandatory minimum: cooperate or confess. Successful cooperation with the government can lead to a “5K1.1” motion — i.e. a letter from the government to the judge confirming the defendant’s “substantial assistance in the investigation,” which permits the court to sentence below the mandatory minimum under a provision in the Sentencing Reform Act, 18 U.S.C. 3553(e). Or the defendant can confess, which means seek relief under 18 U.S.C. 3553(f), the so-called safety valve provision. The safety valve gets the defendant out of the mandatory minimum even if the government opposes it but only if he tells everything he knows about the drug transaction — i.e. who gave him the drugs and where they were headed. There are limits on safety valve relief: it does not apply if you have certain prior convictions, used or threatened violence, or were a leader of the drug operation.

Enter the new Holder memo. It’s just like safety valve relief. The AG’s memo tells prosecutors they should not charge mandatory minimums where (1) there’s no violence, (2) the defendant is not a leader in the drug trafficking organization, (3) the defendant “does not have significant ties to large-scale drug trafficking organizations, gangs or cartels” and (4) the defendant does not have a “significant” criminal history. Two points that jump out: unlike safety valve, the defendant does not have to confess or provide any information at all to the government. At the same time, the memo seems to permit virtually unlimited discretion to individual prosecutors because item #3 is subjective: it could be argued that anyone entrusted with thousands of dollars worth of drugs has “significant ties” to a drug gang.

This leads to a bizarre conclusion, that may be explained as the new policy plays out in practice. What the Holder memo really does is take information away from prosecutors. It provides relief for most safety valve-eligible defendants, but does not require them to spill the beans. Will prosecutors really be satisfied with this new state of affairs and decline to charge mandatory minimums when defendants stay silent? Time will tell.


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