The Justice Department’s New Memorandum to Federal Prosecutors on Charging Drug Offenders

In my last post, I gave a preliminary assessment of Attorney General Eric Holder’s recent speech on reforming charging policy for low-level drug offenders. I pointed out that whether or not this really marks a major policy change depends in large part on the details outlined in an internal memorandum Holder issued to federal prosecutors. Here is that memorandum in all its glory [HT: Jacob Sullum, who makes some good points about the memo and its limitations]. Unfortunately, the relevant section is not much more precise than Holder’s speech or the NY Times account I quoted in my last post. Overall, this is hardly “a major shift in criminal justice policy,” as the New York Times calls it. It looks more like a fairly minor shift dressed up in major rhetorical flourishes.

Here are the relevant guidelines:

[I]n cases involving the applicability of Title 21 minimum sentences involving drug type and quantity, prosecutors should decline to charge the quantity necessary to trigger a mandatory minimum sentence if the defendant meets each of the following criteria:

* The defendant’s relevant conduct does not involve the use of violence, the credible threat of violence, the possession of a
weapon, the trafficking of drugs to or with minors, or the death or serious bodily injury of any person;

* The defendant is not an organizer, leader, manager, or supervisor of others within a criminal organization;

* The defendant does not have significant ties to large-scale drug-trafficking organizations, gangs, or cartels; and

* The defendant does not have a significant criminal history. A significant criminal history will normally be evidenced by three or more criminal history points but may involve fewer or greater depending on the nature of any prior convictions.

These four exceptions are both vague and broad. They don’t explain what qualifies as a “large-scale drug-trafficking organization, gangs, or cartel,” or what it means to have “significant” ties to such, or how much evidence is needed to prove any of this. Jacob Sullum suggests that ” Many marijuana dealers and pretty much all cocaine and heroin dealers arguably would fail that test,” and he’s probably right.

The memo does shed a little light on what it means to have a “significant criminal history.” However, the accumulation of 3 points under federal sentencing guidelines is actually fairly easy. Even the shortest possible prior prison sentence counts as 1 point, any sentence of sixty days or more counts as 2 points, and any sentence of more than 13 months counts as 3 points all by itself. Given the lengthy sentences given to low-level drug offenders in the federal system, that isn’t much of a constraint, especially since in some cases the 3 point standard need not be reached at all. A “credible threat of violence” probably exists in a wide range of drug deals; that’s a normal part of conducting business in an illegal market. Finally, the range of people who might qualify as an “organizer, leader, manager, or supervisor of others within a criminal organization” is potentially very broad. It could include anyone who issued instructions to anyone else as part of a drug sale, and thereby served as an “organizer” or “manager” of their activities. The four exceptions are so broad that there isn’t that much of a rule left. They are vague enough that, in practice, it’s difficult to imagine many cases where the prosecutor who couldn’t make at least a plausible argument that the defendant fit within at least one of these four categories.

I don’t mean to be completely negative about the memorandum. It might well encourage some federal prosecutors to cut down on drug charges against low-level offenders at the margin, especially some who may be skeptical about the War on Drugs to begin with. By and large, however, the memorandum does not live up to the hoopla surrounding it.