TBA Law Blog

Posted by: Wade Davies on Nov 1, 2013

Journal Issue Date: Nov 2013

Journal Name: November 2013 - Vol. 49, No. 11

Major Policy Changes on Mandatory Minimum Sentences in Federal Court: Those of you who practice in federal court know the power of mandatory minimum sentences imposed by Congress. Even for fairly low-level drug offenders, mandatory sentences can easily require service of five or 10 years, and prior convictions (even for probated state offenses) can boost the sentence to life.[1]

Since I’ve been practicing law, the policy of the Department of Justice has been to charge the most serious readily provable offense and generally not to give up such an offense in plea-bargaining.

Attorney General Eric Holder has changed that policy. He reasoned that there are times when the mandatory penalties do not produce a just result or one that serves the purposes of sentencing, and he has given United States attorneys discretion not to seek mandatory minimum penalties.

Holder announced and explained the policy move in a major speech to the American Bar Association.[2] The Department of Justice will no longer seek available mandatory minimum sentences in certain cases. Because Congress made clear that these penalties are mandatory for certain offenses, implementing this new policy requires some explanation. Basically, the department will decline to plead certain facts in indictments that are required elements before the mandatory penalties can be imposed.

In his memorandum to United States attorneys setting out the new policy, the attorney general used a recent United States Supreme Court decision as a departure point from prior policy:

In Alleyne v. United States, 133 S.Ct. 2151 (2013), the Supreme Court held that any fact that increases the statutory mandatory minimum sentence is an element of the crime that must be submitted to the jury and found beyond a reasonable doubt. This means that for a defendant to be subject to a mandatory minimum sentence, prosecutors must ensure that the charging document includes those elements of the crime that trigger the statutory minimum penalty.[3]

Attorney General Holder thus said that because certain elements are required to be pled in an indictment in order to trigger mandatory sentencing, under certain circumstances prosecutors should decline to include those factors in an indictment.

The department’s new policy is part of an overall focus on getting “smart” on crime, which has caused a reexamination of the allocation of resources. The attorney general explained the reasons for the changes:

… [W]e now refine our charging policy regarding mandatory minimums for certain nonviolent, low-level drug offenders. We must ensure that our most severe mandatory minimum penalties are reserved for serious, high-level, or violent drug traffickers. In some cases, mandatory minimum and recidivist enhancement statutes have resulted in unduly harsh sentences and perceived or actual disparities that do not reflect our Principles of Federal Prosecution. 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.

Now for the practical portion — here are the standards that prosecutors must examine in deciding whether to forgo seeking mandatory minimum sentences.

  • 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.

Even if a prosecutor obtains an indictment charging the elements that would result in mandatory sentencing, that prosecutor may go back to the Grand Jury and obtain a superseding indictment that does not contain the required elements. This can be done as a result of obtaining new information or as part of a plea agreement.

Similarly, a prosecutor may decline to file the information necessary to impose mandatory sentencing based on prior convictions if an evaluation of similar factors would indicate such a sentence is contrary to the principles of sentencing. An example of this would occur when a defendant is a minor player in a drug conspiracy and the defendant has two prior state drug convictions — this scenario would previously have resulted in a life sentence upon conviction.[4]

United States attorneys are given discretion in implementation of the new policies and have already given a lot of thought to how they are going to exercise their discretion to be “smart” on crime.[5]

A subsequent memorandum clarified that the new policy is to be applied to all pending cases where guilt has not been adjudicated; the policy will be discretionary where guilt has been adjudicated but the defendant has not been sentenced; but otherwise the policy will not be applied retroactively.[6]

Rate Increases for Appointed Counsel

This hasn’t happened since about the time I started practicing, so I have to note that the Tennessee Supreme Court has raised the caps on payment for counsel representing indigent defendants in non-capital first-degree murder and Class A and B felonies. While the adjustments are a small step, this is the first increase for non-capital representation since 1994.

Trial courts still must appoint private counsel to represent indigent defendants when the public defender cannot accept the appointment because of a conflict.

Rule 13 of the Rules of the Tennessee Supreme Court sets out the rules for compensation of appointed counsel. If anyone thinks people are getting wealthy from representing poor people at state expense, take a look at the rule. The rates have not changed since 1994. The state pays $40 per hour for out-of-court work and $50 for in-court, which does not include the time spent in court waiting. In addition, the Rule establishes maximum compensation for different types of cases. Until September 2013, those caps had also not changed in almost 20 years.

On Sept. 19, the Tennessee Supreme Court issued an order “to amend Section 2(d) and (e) of Rule 13 to increase the maximum compensation allowed for non-capital cases in which the defendant is charged with first-degree murder or with a Class A or B felony.”[7]

The amendments raise the caps for A and B felonies from $1,500 to $2,500. In cases in which the defendant is charged with first degree murder or an A or B felony, the cap can be extended to $5,000 if defense counsel demonstrates that the representation was “extended” or “complex.” The cap had previously been $3,000. The $3,000 cap for extended and complex cases remains for other felonies. The $5,000 cap in first-degree murder cases can be waived “if the [trial court] order demonstrates that extraordinary circumstances exist and failure to waive the maximum would result in undue hardship.”

The Supreme Court has been working with a variety of interested parties for years to improve the way appointed counsel are paid. Remember, though, that amendments to Rule 13 are meaningless unless the legislature provides the necessary funding.

An Update on Admissions During Negotiation

In July 2012 we looked at circumstances in which statements made in negotiations can be used as admissions in criminal cases.[8] At that time, I opined that Rule 408 of the Federal Rules of Evidence might not protect a statement made in the context of an offer to compromise a civil case. The Sixth Circuit tells us that is not the case. In McAuliffe v. United States, the court explained the 2006 amendments to Rule 408 “conclusively settled a circuit split in favor of applying Rule 408 in criminal cases,” abrogating precedents to the contrary.[9]


  1. Title 21, United States Code, Section 841(b).
  2. “Smart on Crime: Reforming the Criminal Justice System for the 21st Century,” Remarks to American Bar Association’s Annual Convention in San Francisco, Calif., Aug. 12, 2013, http://www.justice.gov/ag/smart-on-crime.pdf
  3. Holder Memorandum to the United States Attorneys and Assistant Attorney General for the Criminal Division, “Department Policy on Charging Mandatory Minimum Sentences and Recidivist Enhancements in Certain Drug Cases,” Aug. 12, 2013.
  4. Title 21, United States Code, Section 841(b)(1)(A)(ii), for example, requires a life sentence for a defendant with two prior felony drug convictions if the crime involves five kilograms or more of cocaine.
  5. Edward Stanton III, United States attorney for the Western District of Tennessee, recently explained how his office is implementing the “smart on crime” initiatives of the Department of Justice. See http://www.jacksonsun.com/article/20130922/OPINION/309220003/Edward-Stanton-III-column-Plan-gets-Smart-Crime-West-Tennessee?nclick_check=1
  6. Holder Memorandum to the United States Attorneys and Assistant Attorney General for the Criminal Division, “Retroactive Application of Department Policy on Charging Mandatory Minimum Sentences and Recidivist Enhancements in Certain Drug Cases,” Aug. 29, 2013.
  7. In Re Rule 13, Section 2(D) and (E), Rules of The Tennessee Supreme Court, No. ADM2013-0211, filed Sept. 19, 2019, http://www.tncourts.gov/sites/default/files/supreme_court_order_amending_supreme_court_rule_13_section__2_-_effective_1-1-2014.pdf
  8. “Can We Talk? Inadvertent Admissions During Negotiations in Criminal Cases,” Tennessee Bar Journal, July 2012, https://www.tba.org/journal/can-we-talk-inadvertent-admissions-during-negotiations-in-criminal-cases.
  9. 514 Fed. Appx. 542, 549 (6th Cir. Feb. 7, 2013).

Wade Davies WADE DAVIES is the managing partner at Ritchie, Dillard, Davies & Johnson PC in Knoxville. He is a 1993 graduate of the University of Tennessee College of Law. The majority of his practice has always been devoted to criminal defense. Davies is a member of the Tennessee Bar Journal Editorial Board.