Amid significant public fanfare, Attorney General (AG) Eric Holder issued a memo dated August 12, 2013, to all federal prosecutors. It relied on the holding in Alleyne v. United States, 133 S. Ct. 2151 (2013), which held that factors that serve to trigger a mandatory minimum sentence are elements of the offense that must be found by a jury beyond a reasonable doubt, or admitted by the defendant during the course of a guilty plea. As a corollary to that holding, the AG instructed prosecutors that charging documents, i.e., the indictment or information, must allege those necessary elements that trigger the application of a mandatory minimum.
Seizing on this principle, the Holder memo announced that prosecutors must consider a variety of factors before pursuing a mandatory minimum in a charging document. The essence of the Holder memo reminds federal prosecutors that they hold the key to unlock the door leading to a statutory mandatory minimum sentence. If the charging document does not contain the essential elements to establish the applicability of a mandatory minimum, and the defendant does not admit necessary facts to establish the existence of the mandatory minimum during the course of a guilty plea, then, the Holder memo posits, there is no mandatory minimum about which to worry.
As an overall federal policy, the Holder memo reminds federal prosecutors that they “must assure that our most severe mandatory minimum penalties are reserved for serious, high-level, or violent drug traffickers.” By contrast, the Holder memo reasons, “long sentences for low-level, non-violent drug offenses do not promote public safety, deterrence, and rehabilitation.” These considerations, as well as rising prisons costs and other public-safety spending, require federal prosecutors to reevaluate which offenders should be subject to mandatory minimum penalties for drug offenses.