Columbus Criminal Defense Attorney Newscast

After AG Eric Holder addressed the ABA in San Francisco on Monday, he published a memo articulating a new DOJ policy on when mandatory minimum sentences and enhanced statutory punishments can be sought in drug cases.

So why after 25 years of embracing suffocating mandatory minimum sentences is the DOJ taking its foot off the gas on the bus conveying our clients to the BOP? AG Holder’s memo sets forth the motivation for this refreshing policy change: “Long sentences for low-level, non-violent drug offenses do not promote public safety, deterrence, and rehabilitation. Moreover, rising prison costs have resulted in reduced spending on criminal justice initiatives, including spending on law enforcement agents, prosecutors, and prevention and intervention programs. These reductions in public safety spending require us to make our public safety expenditures smarter and more productive.”

To give guidance to line-AUSAs, AG Holder’s memo sets forth criteria they should consider in charging an offense triggering a mandatory minimum sentence. In order to slip the noose of a mandatory minimum, the defendant must now satisfy all of the following four criteria: (1) the defendant’s relevant conduct did not involve the use of violence, a credible threat of violence, possession of weapons, trafficking drugs to or with minors, the death or serious injury of any person; (2) the defendant was not a leader, manager, supervisor, or organizer of others within a criminal organization; (3) the defendant did not have significant ties to large-scale drug trafficking organizations, gangs, or cartels; and (4) the defendant does not have a “significant” criminal history. A significant criminal history is presumed to be 3 or more criminal history points but could be fewer or greater given the nature of the convictions. God forbid your client has a DUI conviction for which he is on supervision when he violates federal law—his criminal history could be considered “significant!”

In the past two weeks, we blogged about the number of people in federal prison serving life sentences for drug convictions. Many of those sentences are statutory mandatory life sentences because the defendant was convicted of a Class A felony, he had two prior convictions for felony drug offenses, and the prosecutor filed a notice, pursuant to 21 U.S.C. §851, notifying the world of their intention to seek an enhanced sentence. Well, AG Holder’s memo puts a bridle in the mouths of aggressive AUSAs who play this type of hardball.

After Monday, the DOJ’s default position is that these §851 enhancements should only be sought in cases in which the defendant’s conduct “makes the case appropriate for severe sanctions.” The following six factors give some insight as to whether the case merits “severe sanctions:” (1) whether the defendant played an organizer, leader, manager, or supervisory role of others in the criminal organization; (2) whether the defendant used or threatened the use of violence in connection with the offense; (3) the nature of the defendant’s criminal history, including any prior history of violent conduct or recent prior convictions for serious offenses; (4) whether the defendant had significant ties to large-scale drug trafficking organizations, gangs, or cartels; (5) whether the §851 enhancement would create a gross sentencing disparity with equally or more culpable co-defendants; and (6) other case-specific aggravating or mitigating factors.

Although AG Holder’s memo is quick to point out the policy is not intended to “create or confer any rights, privileges, or benefits in any matter, case or proceeding,” knowledge of these criteria should help a criminal defense attorney keep the AUSAs honest in how a case is charged.

This enlightened DOJ policy obviously applies to all drug cases filed after August 12, 2013. However, the memo is silent as to whether it applies to: cases awaiting trial; cases awaiting sentencing; cases on appeal; cases in §2255; and how about cases where the convictions are final and the poor sap is serving a life sentence? Hopefully further direction on the implementation of this new policy will follow!

The Scott & Nolder Law Firm has built a solid reputation as criminal defense lawyers in Columbus and throughout the state of Ohio with providing a top-notch criminal defense for our clients. We also handle all types of federal criminal defense cases. Our attorneys provide our clients with an aggressive defense for criminal charges including OVI, DUI, Drugs, Sexual Offenses, Weapons, Murder and more. Call us to set an appointment with one of our Columbus criminal defense attorneys today.