Great and terrible power, exercised with some lenience, is still great and terrible power.

Ken White at Popehat has an excellent post that’s extremely helpful for those who would like to understand the Holder memo and federal sentencing: The Eric Holder Memorandum on Mandatory Minimum Sentences, Explained

He concludes:

I’m not happy that the methodology for the change is a fairly dramatic expansion of prosecutorial discretion. Prosecutors already had a vast amount of discretion in imposing mandatory minimums — they decided whom to charge federally at all, and decided when a defendant cooperates whether that cooperation is sufficient to spare them the mandatory minimum sentence.

But previously, with certain exceptions, the Justice Department required prosecutors to seek the mandatory minimum when it was applicable. The Holder Memorandum confers an additional and substantial measure of discretion by letting prosecutors judge which defendants deserve mandatory minimums based on some criteria that incorporate wiggle room.

The Holder Memorandum also continues to normalize vast prosecutorial discretion by making explicit that prosecutors can dictate Jane Doe’s sentence simply by deciding whether or not to mention drug weight in her indictment. Federal prosecutors therefore retain almost unimaginable power to change the course of lives, to coerce cooperation, to separate some defendants from others.

It’s a pretty powerful point. We’re not likely to see real longterm reform via the good will of prosecutors.

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