The Holder Memo and sentencing disparity

The Attorney General has issued a Memorandum to his prosecutors that sets out the government’s new approach to whether prosecutors will use language in indictments that trigger statutory minimum sentences.  The Memo also tells prosecutors about when to charge prior crimes that trigger particularly harsh sentencing consequences. Additionally, the Memo emphasizes that prosecutors must be entirely candid with judges and probation officers about the true nature of the offender’s conduct. For example, prosecutors are not to “swallow dope.”

If the Holder Memo is interpreted strictly by line prosecutors, it is a very good thing. If, however, the Holder Memo is interpreted loosely by prosecutors and they stretch the boundaries of the government’s new-found leniency policy to do deals that do not conform to the spirit of the policy, then the Holder Memo will be a very bad thing. It will result in even greater sentencing disparity in drug cases.

In the District of Nebraska, we already have significant sentencing disparity in drug cases between Lincoln as compared to Omaha.  In other words, it is now true that 60 miles can make a big difference for similarly situated offenders.  I hope the Holder Memo doesn’t make that disparity worse.

I trust that the very able United States Attorney for the District of Nebraska and her experienced and knowledgeable First Assistant, will carefully monitor the situation and insist that all drug prosecutors apply the Holder Memo honestly and strictly. Among other things, this means holding the OCDETF chief and his or her deputy accountable. Equal justice before the law is at stake.

I, for one,  will be watching.


6 responses

  1. Marc,

    I agree with you. Among other reasons, that is why I strongly urge that all federal judges should allow the Sentencing Commission to release their sentencing statistics on a yearly basis. At present, the judges in the District of Nebraska are the only judges who do so. If you want to see the stats for each of our judges, click here.

    All the best.


  2. enjoy your blog (long time reader – first time commenter); :).

    what do you think should be done w/ those that have been sentenced prior? e.g., someone that got ten years that now would get two years that is five years into sentence?


  3. What happens if, during a plea colloquy, the defendant clearly admits a fact that would trigger the mandatory minimum sentence? (E.g., “Oh, yes, Your Honor. I absolutely intended to distribute those 2 kilos of heroin the DEA agents found in my pocket. I definitely had 2 kilos of heroin on me that night, probably more.”) Would the sentencing court be required to impose the mandatory minimum sentence even though the government did not allege the drug weight in the charging instrument? Or does the government’s failure to allege a fact that would trigger a mandatory minimum sentence preserve the court’s discretion to impose a sentence below to statutory minimum?

  4. Lauren,

    Your question is an extremely good one. Since I may have to decide that question, I respectfully decline to give you my views.

    I will say that an AFPD, who is a terrific lawyer, argues that it is an Executive branch decision whether to trigger that mandatory minimum, and that decision is represented solely be the charging instrument which is typically an indictment. Since the defendant has a right to insist upon an indictment, if the government does not seek an indictment triggering the statutory minimum, the Court cannot substitute its judgment for the Executive and the grand jury–so the argument goes. That AFPD adds that his argument is buttressed by the fact that the Holder Memo implicitly assumes that the charging instrument (not the real offense conduct) governs whether the statutory minimum applies.

    All the best.


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