Via the Right Scoop, one last goodie from Holder’s huddle with the House this morning. To properly enjoy it, though, first you need to read this short but valuable primer from Ken White of Popehat published last August on the Holder memo that Gowdy’s describing. The Supreme Court ruled last year that if a federal prosecutor wants to slap a defendant with a mandatory minimum sentence, he needs to take care to include every fact that would trigger that sentence under federal law in the charging document. If you omit even a single relevant fact — such as, say, the amount of drugs that the defendant was caught with — then the judge is no longer bound by the mandatory minimum and can sentence the defendant to less time. That gives the prosecutor more discretion than he used to have. If, in his opinion, the defendant deserves some punishment but not as much as the mandatory minimum would require, he can simply omit the detail about the amount of drugs and thus empower the judge to hand down something more lenient. That’s what Holder’s memo is all about, instructing U.S. Attorneys not to specify the amount under certain circumstances (e.g., the defendant is nonviolent, not a member of a cartel, etc) so that the judge can ignore the mandatory minimum.
What makes this trickier than Obama’s usual invocations of executive power is that the DOJ does, in fact, have loads of discretion in deciding whom to charge and what to charge. All prosecutors do; Gowdy, a former prosecutor himself, happily concedes the point. This isn’t an example, a la the employer mandate, of O ignoring a statute in every instance simply because it’s politically inconvenient to him. It’s a determination that a particular class of defendants warrants a lighter sentence than federal guidelines require because of the unique circumstances of their cases. The U.S. Attorney could, in fact, refuse to charge those defendants at all even if there’s no doubt that they’re guilty. Gowdy’s fine with all that in principle. His problem is that federal law already allows for a few exceptions to mandatory minimum sentences (again, see Ken’s post) but Holder’s memo goes beyond it, essentially expanding the law unilaterally. The memo also specifically advocates withholding information from the court (the amount of drugs the defendant was caught with) in the name of securing a more just sentence. The core of this debate, then, is how much leeway a prosecutor should have in relaxing a democratically enacted criminal statute, even if his intentions are good and he’s trying to show mercy towards the defendant. Should he follow the law to the letter if it produces an unjust result or should he look the other way at it to obtain a more just one? Pick a side, because given the attention that mandatory minimums have gotten on both the left and the right lately, with Rand Paul and George Will emerging to criticize “sledgehammer justice,” the issue will only get hotter before 2016.