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

  1. Uncle Albert's Nephew says:

    It’s also a “Cinderells crumb”. Something good by Executive Order that can be taken away by the Executive Order of a future president.

  2. jean valjean says:

    part of the problem is elected prosecutors. in this populist age the best way to get reelected is to make waves with massive sentencing.

    • divadab says:

      Fed prosecutors are appointed, not elected.

      • Jean Valjean says:

        yes, but how many federal prosecutors then run for elected office like governor, using their “tough on crime” credentials to get elected? Carmen Ortiz in Massachusetts comes to mind.

        • allan says:

          thankfully Jean, Oregon bucked that trend last summer when former fed atty and snarky anti-pot guy, Dwight Holton, got his ass whupped and his walking papers handed to him after a substantial early lead in the Dem primary for state AG. And the best part is he got his ass whupped by us amotivational pot heads.

  3. DonDig says:

    Probably another Ogden memo. . .

  4. claygooding says:

    As dark said,,we are starving and they give us a skittle. The words out of Holder while sounding great changes nothing,,we need laws changed,not ideals and trusting politicians,because ideals are to diversified to serve the people and politicians have already shown that we can’t trust them,,they got us where we are now..

  5. Servetus says:

    Candice Berg quotes Bruce A. Dixon at Truthout who examines AG Eric Holder’s record on followups to his stated agendas:

    The previous disparity between crack and powder cocaine has been seen widely as an institutional form of racism because crack cocaine is more widely used and distributed in impoverished communities of color. Dixon called the law a disappointment and said it didn’t go far enough in reducing the weight ratio needed to trigger a mandatory minimum sentence.

    But most importantly, according to Dixon, since the law’s passage, the Obama administration and Eric Holder have been in court arguing not only against retroactivity for prisoners sentenced before the law’s passage but against the deductions in penalties applying to anyone, even those sentenced after the bill’s passage, essentially retaining the status quo of mass incarceration for people of color.

    “There’s a big, big gap between what Mr. Holder says and what this president says and what they actually do. His words are positive and hopeful, but we have a track record now of saying one thing and doing another,” Dixon said. “This is climate in which the authorities have to try to appear to backtrack a little from some of their own positions.”

    Berg also notes that the justice department has said nothing about resolving the parallel constructions taking place in drug enforcement investigations.

    It’s politics as usual. Watch what they do; question what they say.

    • Duncan20903 says:


      What really sucks about questioning what they say is that in order to do that you have to listen to them talk. I find doing so nauseating.

  6. Howard says:

    These cynical attempts to appease. Holder grabs a rotten apple, gives it a fresh coat of glossy red spray paint and, viola, all is better now? Nope, still rotten at the core, Holder.

    Does he really think US States Attorney Melinda ‘Mad Dog’ Haag is going consider altering the way she does business by merely suggesting she do so? Does a sledge hammer have a subtle mode?

    • Tony Aroma says:

      You hit the nail on the head. Come up with a few “guidelines” that address the public’s major concerns, while not taking any power away from prosecutors. If anything, these guidelines actually give more power to prosecutors, for example, more leverage in plea bargains. It’s just a weak attempt to sound like something is being done without actually doing anything. Sound familiar?

  7. Servetus says:

    John Oliver at Comedy Central eviscerates stop-and-frisk:

  8. DonDig says:

    On the other hand, this is an alternative that I hadn’t really thought about. From wptv, with a CNN byline.

    John Kane, a federal judge in Colorado, said in December he sees marijuana following the same path as alcohol in the 1930s. Toward the end of Prohibition, Kane explained, judges routinely dismissed violations or levied fines so trivial that prosecutors quit filing cases.
    “The law is simply going to die before it’s repealed. It will just go into disuse,” Kane said. “It’s a cultural force, and you simply cannot legislate against a cultural force.”

    That’s kinda hopeful. (although excruciatingly slow)

    • Duncan20903 says:


      Did you know that adultery is criminalized in 22 States? In Idaho, Massachusetts, Michigan, Oklahoma and Wisconsin it’s a frackin’ felony. I’d really like to see some law reform advocates start finding some of the most annoying public servants including law enforcement in Michigan and Massachusetts and build a prima facie case to prove that they’ve broken this law and insist on they’re arrest. I nominate Michigan Attorney General Bill “Poop” Schuette for the inaugural target. But with all of the alpha males in positions of authority it shouldn’t be hard to find some. Go all Johnny Cochran on their ass chanting “if the dress is a mess, you must confess.”

      Next time you hear someone say that authorities can’t pick and choose which laws they enforce and those that they don’t you can mention this. I almost always find the responses from “the LAW is the LAW (blah, blah, blah)” hilarious. But of course my very favorite comedy genre is the exercise in stupidity and the sycophants of prohibition are almost always at or near the bottom of the stupid barrel.

  9. Appeasement.
    When the states vote to legalize in many cases it has been their own AG’s who have fought public opinion in concert with the DEA. Foot dragging and sabotage to the new laws has been the response. Behind it: the justice department.

    The path is clear to ending the war on drugs. Half hearted measures by Holder to “tell them what they want to hear” and more Ogden memo like approaches are not enough. Its governmental lies and appeasement along the lines of another famous statement – “let them eat cake!”

    Telling the public what it wants to hear and then doing something different has been the hallmark of the Obama administration. Smoothing the way for Sativex does not legalize the use of marijuana. Kevin Sabet and Eric Holder are right on the job. Without concrete legislation its all like smoke and mirrors. Drug war corruption runs deep.

  10. Servetus says:

    Does Holder have any authority over the DEA when it functions as an intelligence agency like the CIA? The DEA is currently having a cow over the release of DEA Agent Kiki Camarena’s convicted killer. But according to writer Bill Conroy, the CIA has the most to fear: “Narco-Trafficker Rafael Caro Quintero Knows Where All the Skeletons Are Buried in the US’ Dirty Drug War”.


    Jordan, at the time, pointed out to Camarena that they were being followed.

    Camarena replied calmly that the individuals who were tailing them worked for Mexico’s intelligence service, the Federal Security Directorate, or DFS in its Spanish initials.

    From Bowden’s book:

    Camarena brushes off Jordan’s alarm by noting that DFS is trained by the CIA and is functionally a unit in their mysterious work. And he says they are also functionally “the eyes and ears of the cartels.”

    That is a stunning revelation, that the CIA and DFS were “functionally” working in unison and simultaneously the DFS also was in league with Mexico’s narco-traffickers — which at the time included Caro Quintero along with his partners Miguel Angel Felix Gallardo and Ernesto Fonseca Carrillo, considered the top dogs in Mexico’s then-dominate drug organization, The Guadalajara Cartel.

    In fact, the DFS also was accused of being complicit in the kidnapping and murder of Camarena and the subsequent attempt to provide protection to Caro Quintero — who was eventually apprehended in Costa Rica after allegedly getting to that country with the help of the DFS.

    Caro Quintero and Fonseca Carrillo were eventually convicted and jailed for their roles in Camarena’s murder and the killing of his pilot, Alfrado Zavala Avelar. Each was sentenced to serve 40 years in a Mexican prison. Caro Quintero was 37 at the time.

    Nothing is as it seems with the DEA. Black is white, and white is black.

  11. Duncan20903 says:


    Oh for the love of god…just what we need, Heidi Fleiss. So what’s next, she had Eliott Spitzer wearing a sun dress doing the grunt work because he wanted to be ordered around by a woman in charge?

  12. darkcycle says:

    Cops at Hempfest set to give out bags of Doritos instead of citations for smoking pot:
    That’s why I love Seattle….

    • men in black says:

      yeah… so sorry I’m gonna miss this year. I imagine a massive cloud of smoke arising above Seattle, big enough for the astronauts in the space station to see it… (and get a contact high from…)

      Well Oregon rolls along…

      Governor John Kitzhaber today signed House Bill 3460 to license and regulate medical marijuana dispensaries. Along with signing the bill, the Governor issues a signing letter to guide the Oregon Health Authority during the rulemaking process over the next nine months.

      “We are pleased to get both the signature and the direction from Governor Kitzhaber. Now it is up to those people who are part of the medical marijuana program that we draft these rules right and implement them responsibly to provide both safe access to patients and be good neighbors in our communities,” said Geoff Sugerman, one of the leading proponents of the bill.

      Currently, there are somewhere close to 200 dispensaries operating in Oregon today without licensure or regulation. HB 3460 requires those facilities to register with the Oregon Medical Marijuana Program and meet a series of regulations to ensure compliance with the law.

      Those regulations include testing of medicine, restrictions on location and tracking all medical marijuana coming in and out of facilities to ensure only valid patients are receiving legally grown medical marijuana.

      “This is the next step in ensuring a system that provides safe access to as many patients as possible while making sure these facilities are holding themselves to a high standard of conduct,” said Sam Chapman, a lobbyist for Oregonians for Medical Rights who helped draft the bill. “Now we need to make sure those who are operating facilities understand their responsibilities to their patients and their communities.”

      State Rep. Peter Buckley (D-Ashland) and State Senator Floyd Prozanski (D-Lane County) were chief sponsors of the bill.

      Although… since Paul Stanford hijacked our legalization bills we haven’t heard a peep about ’em. And I ain’t about to go to his wwwebsite to look.

    • Duncan20903 says:


      What the heck would I do with a bag of Doritos? Oh right, I’d get a ticket for littering.


      AP Exclusive: NYC Comptroller Liu wants marijuana legalized

    • claygooding says:

      I suppose we have to bring our own salsa too,,,wish I may,wish I might,have Doritos and salsa for supper every night.

    • Plant Down Babylon says:

      Thanks for the heads up on roots organic. We just started getting it here. I haven’t seen any aphids yet, but i believe you!
      I was getting fungal gnats with fox farm, and I’ve been just sticking with black gold when I can’t compost enough.

      I never reuse dirt for my plants, I just put it in my garden. We don’t have many options on the big isl.

      I liked happy frog, but for some reason the state barred it from coming in. It’s a little tougher being all outdoors as mother nature claims her share.

      I like how the ants harvest and use fungal gnats and aphids. The ants are my biggest problem. Actually, coffee borer beetle reeks alot of havoc as well (I’m in the center of coffee country).
      Always appreciate your advice!

      • darkcycle says:

        Actually, by far the best commercial soil I have found is Gardener and Bloome potting soil, with 20% added perlite and a little prilled lime. It’s a soil available at most normal garden centers, and it’s half the price of the Roots or Fox Farm soils. It’s mostly composted forest products, and has a characteristic sharp smell. It is really amazing stuff. Don’t trust me, mix some up and try it side by side with anything. I laugh all the way to the garden store….Oh…you’re in Hawaii, may not be available there.

      • darkcycle says:

        Dude Root Aphids, when they emerge, look just like fungus gnats. Otherwise, you will never see them. Tiny, tiny, like a spider mite. The way to tell them apart is the gnats are all “dur-de-dur, boop-boop, and where was I going?” They are subject to every air current, easy to clap, and aren’t strong fliers.
        Root Aphids are on a mission. They fly with intent- in straight lines, and they are hard to get with a clap. And once you’ve clapped a couple? The others start zig-zagging wildly.
        The Gnats are no issue. Aphids will slowly build to a critical mass and then all of a sudden, your flowering plants will look like someone went over them with a flame thrower.
        And the Aphids? This sounds like hyperbole, but it isn’t….they can’t be eradicated. Not by any normal means you are used to.
        All I can say is, as far as root aphids go, you better hope and pray they never develop a taste for human flesh.

      • Duncan20903 says:


        Years ago I had a very annoying and persistent infestation of fungus gnats until I figured out that they were coming in from the drains to the sewer.

  13. Francis says:

    “The best way to get a bad law repealed is to enforce it strictly.”
    — Abraham Lincoln

    The best way to prevent a bad law from being repealed? Enforce it arbitrarily and selectively, preferably in a manner that targets marginalized groups while avoiding politically powerful ones.

  14. Windy says:

    If root aphids are truly a variety of aphid, they are born pregnant, which would make them extremely difficult to eradicate, regular aphids are easier because their bodies are so soft that knocking them off the plants with a jet of water often kills them, but when I get a heavy infestation I use Bayer 3 in 1 (we don’t eat any of our flowers so occasionally using a systemic pesticide, which also fertilizes and protects against plant diseases, on particularly prized plants is acceptable to me).

    Thanks for naming the soil you use, I’ve been looking for a new soil to use for my flower pots, I’ve been unhappy with the results of some that I’ve tried recently (including Black Gold). I also need to beef up the soil at the south end of my house, which is mostly gravel now. Some hardy plants like Glads, California Poppies, Batchelor’s Button, and Alyssum do very well there, but I’d like to fill that area with a few more showy flowers that need a soil which retains more moisture.

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