Impact Estimates of DOJ Policy Changes and Proposed
Legislation Regarding Mandatory Minimums
In recent months, Attorney General Eric Holder has issued
new policies regarding the application of mandatory mini-
mum penalties in drug trafﬁcking cases. He also vowed to
work with Congress to enact legislation reforming manda-
tory minimum statutes, speciﬁcally citing the proposed
‘‘Justice Safety Valve Act’’ and the ‘‘Smarter Sentencing
Act.’’ Key differences among the proposals are 1) whether
they apply to all mandatory penalties, or only those appli-
cable to drug trafﬁcking offenses, and 2) whether they also
direct changes to the sentencing guidelines.
The Federal Public and Community Defenders used
data from the U. S. Sentencing Commission to estimate the
number of offenders who might beneﬁt annually from the
proposals. The following combines three memoranda that
were developed in September and October, 2013, and made
available to defense attorneys and interested policymakers.
I. Impact of Holder Memo
Attorney General Eric Holder issued a memo on August 12,
2013, directing that ‘‘prosecutors should decline to charge
the quantity necessary to trigger a mandatory minimum
sentence’’ if the defendant meets each of several listed cri-
teria. While more than 25,000 defendants were sentenced
in FY2012 under the drug trafﬁcking guidelines, and 15,509
were convicted under statutes carrying a minimum term of
imprisonment, the best available data suggests that just
over 500 of these defendants might have received a lower
sentence if the Holder memo had been issued in FY2012
and had been fully implemented by line prosecutors.
To estimate the number of defendants likely to beneﬁt
from these new policies, the U.S. Sentencing Commission’s
Monitoring Dataﬁle for FY2012 was queried to determine
how many of last year’s drug defendants appear to ﬁt the
memo’s major criteria, and how many of these did not
already receive relief from any applicable mandatory penalty
through the current ‘‘safety valve’’ or government motions to
reduce sentences to reward defendants’ substantial assis-
tance. To ensure comparability with analyses of other pro-
posed legislation and policy changes, only cases in which the
Commission received full documentation were included.
Alternative analysis showed that including cases with miss-
ing documentation would increase the estimate of the
number of offenders affected by only six defendants.
The memo’s criteria, and the data available to assess
eligibility, are as follows:
• 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;
Defendants who received the guideline adjust-
ment under §2D1.1(b)(2) for use of violence or
threats of violence were excluded. Defendants
who received either the adjustment under
(b)(1), or a statutory enhancement under 18
U.S.C. §924(c), for possession of a weapon were
excluded. Defendants with a BOL of 43 due to
death or serious bodily injury were excluded,
although some other offenses involving death
or serious bodily injury could not be identiﬁed.
Offenses that involved trafﬁcking of drugs ‘‘to
or with minors’’ could not be identiﬁed, because
§2D1.1(b)(14) combines this with other conduct.
However, the total number of offenders who
received an adjustment under (b)(14) is small
(67 or .6% of those sentenced under the 2011
• The defendant is not an organizer, leader, manager
or supervisor of others within a criminal
Defendants who received an aggravating role
adjustment under §3B1.1 were excluded.
• The defendant does not have signiﬁcant ties to large-
scale drug trafﬁcking organizations, gangs, or
It is not possible to determine which defendants
might be deemed to fail this somewhat subjec-
• 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.
Defendants with three or more criminal history
points were excluded.
While 6,780 defendants convicted under drug statutes
carrying a mandatory minimum penalty appeared to meet
the memo’s measurable criteria, most of these already
receive some form of relief from the mandatory minimum
88 FEDERAL SENTENCING REPORTER • VOL. 26, NO. 2 • DECEMBER 2013
Federal Sentencing Reporter, Vol. 26, No. 2, pp. 88–93, ISSN 1053-9867, electronic ISSN 1533-8363.
© 2014 Vera Institute of Justice. All rights reserved. Please direct requests for permission to photocopy
or reproduce article content through the University of California Press’s Rights and Permissions website,
http://www.ucpressjournals.com/reprintInfo.asp. DOI: 10.1525/fsr.2013.26.2.88.
PAUL J. HOFER