Mandatory minimums are laws passed by Congress (as opposed to sentencing guidelines, which are discretionary.) Mandatory minimums trump the guidelines. Congress has repeatedly refused to repeal them. Judges have no discretion to impose a lesser sentence except in two instances: If the defendant cooperates with the Government and provides substantial assistance in the investigation or prosecution of someone else or meets the requirements of the "safety valve."

How it will work, according to the NY Times: Indictments will not specify a drug quantity for substantive or conspiracy offenses when a defendant meets the following criteria:

• no violence involved
• no use of a weapon
• no sales to minors
• no leadership role in a criminal organization
• no ties to large-scale gangs or cartels (some report in other parts of the speech he says "no significant ties")
• no significant criminal history

In Holder's words:

[These defendants]will now will be charged with offenses for which the accompanying sentences are better suited to their individual conduct, rather than excessive prison terms more appropriate for violent criminals or drug kingpins.”

More from Holder:

"We need to ensure that incarceration is used to punish, deter and rehabilitate -- not merely to convict, warehouse and forget."

I've been saying here for years, "America can not jail itself out of its criminal justice problems." Holder today will say:

"[W]e cannot simply prosecute or incarcerate our way to becoming a safer nation."

Another big change: Prosecutors will urge alternative sentences to imprisonment for low-level drug offenders. One article reports he will use the words "diverting low-level offenders to programs that keep them out of federal prisons." If he is going to allow prosecutors to use diversion and deferred prosecutions like they do for corporations who commit crimes, that indeed would be another sea change. (I suspect he's going to talk about alternative sentencing following guilty pleas, rather than deferred prosecution. That still leaves the problem of collateral consequences these defendants face after completing their alternative sentence, since federal law does not provide for record sealing. With a deferred prosecution, there's no conviction and thus no record of conviction.)

Other changes Holder will announce this morning: A reduction in federal prosecutions of traditionally state crimes. He will be directing federal prosecutors a"to develop locally tailored guidelines for determining when federal charges should be filed, and when they should not."

He will also institute increased use of compassionate release, especially for non-violent elderly offenders:

Holder also said the department is expanding a policy for considering compassionate release for inmates facing extraordinary or compelling circumstances, and who pose no threat to the public. He said the expansion will include elderly inmates who did not commit violent crimes and who have served significant portions of their sentences.

As for Congress, there are two bills now pending which would provide some relief from mandatory minimums: the Smarter Sentencing Act and the Justice Safety Valve Act, which would grant judges discretion to sentence below them. (ATTORNEY GENERAL ERIC HOLDER CALLS FOR MAJOR SENTENCING REFORM States News Service August 7, 2013 Wednesday, )

The Safety Valve Act, introduced in the U.S. Senate by Democratic Senator Patrick Leahy and Republican Senator Rand Paul, and in the U.S. House by Democratic Congressman Bobby Scott and Republican Congressman Thomas Massie. The bills would allow federal judges to sentence nonviolent offenders below the federal mandatory minimum sentence if a lower sentence is warranted.

The Smarter Sentencing Act, introduced in the U.S. Senate by Democratic Senator Dick Durbin and Republican Senator Mike Lee, which would lower mandatory minimums for certain drug offenses, make the recent reduction in the crack/powder cocaine sentencing disparity retroactive, and give judges more discretion to sentence certain offenders below the mandatory minimum sentence if warranted.

There's also a bill to allow inmates to shorten their time in prison:

The Public Safety Enhancement Act, introduced in the U.S. House by Republican Congressman Jason Chaffetz and Democratic Congressman Bobby Scott, which would allow certain federal prisoners to be transferred from prison to community supervision earlier if they take rehabilitation classes, saving taxpayer money while improving public safety.

Bills have been introduced several times over the past 20 years to abolish mandatory minimums. They went nowhere. 2009, 2008, 2007 (more here.) Republicans on the other hand: Here's Sensenbrenner in 2004 calling for more mandatory minimums, and the same year, proposing a five year mandatory minimum sentence for someone who passes a joint to someone who has been in rehab; and Alberto Gonzales in 2005 calling for mandatory minimums on all federal crimes.

In 1996, I testified before the U.S. Sentencing Commission arguing for a fix to mandatory minimums. Even back then, we had judges on our side who were willing to work with us to effect change in Congress. We got nothing. So I'm not confident it will be any different this time. Or that if their is change, the exceptions will make them applicable to too small a group. I think Holder's plan, if it's as advertised, has the potential to get the ball rolling faster.

The place where a law change could really help would be if it were made retroactive to apply to those already serving the draconian sentences. Or, if that doesn't happen, if Obama would use his clemency power to commute their sentences.

Memo to journalists: Republicans did not coin the concept of being smart about crime instead of just tough on crime. This isn't happening because of their formation of a group using that name.

There are 325 news articles and reports using that phrase between 1/1/05 and 1/1/08 according to Lexis.com. Even Obama used the phrase during the 2007 primaries:

I will recruit more public defenders ... by forgiving college and law school loans... I will review these mandatory minimum sentences to see where we can be smarter on crime and reduce the blind and counterproductive warehousing of nonviolent offenders... I will also eliminate the disparity between sentencing for crack and powder cocaine.

Other examples: Former Detroit Mayor and ABA President Dennis Archer in Five Ideas that Could Fix the World (Oprah Magazine), available on Lexis.com:

The need for reform is clear. We've spent more than 20 years getting tougher on crime. Now we need to get smarter.

In 2005, the National African American Drug Policy Coalition (NAADPC), an organization of a dozen Black professional groups, embarked on a five year program in several cities find alternatives to prison for drug abuse and end mandatory minimums. (The Crisis January 2005 - February 2005,Pg. 9 Vol. 112 No. 1, available on Lexis.com)

"It is an extremely important development that a new coalition of African American leaders is ready to provide leadership in the national debate on the need for 'smart on crime' policies, including judicial discretion in sentencing, treatment, drug courts and re-entry initiatives," says Laura M. Sager, executive director of Families Against Mandatory Minimums.

The defense bar has also been using that phrase for a long time. Just on TalkLeft, I've used it a dozen times between 2007 and 2009. So don't let the Republicans and their Johnny Come Lately group take credit for it. If they were really behind the idea, they would have gotten Congress to act well before now, and Holder wouldn't need to effect the change through the use of prosecutorial discretion.

What will be the effect of Holder's changes if Congress doesn't act? One that immediately comes to mind:

There will be less incentive for those who qualify for Holder's plan to cooperate with the Government and become a snitch: With the hammer of the mandatory minimum gone, those who can't qualify for the safety valve because of having more than one criminal history point(which could just result from a d.u.i and a petty theft up to 10 years ago)will now have a way to seek a lower sentence without having to cooperate.

Hillary Clinton will also be in S.F. tomorrow to get an ABA award. Where was she on mandatory minimums during the 2007 primaries? Against them. At a debate at Howard University:

Number one, we do have to go after racial profiling. I’ve supported legislation to try to tackle that.

Number two, we have to go after mandatory minimums. You know, mandatory sentences for certain violent crimes may be appropriate, but it has been too widely used. And it is using now a discriminatory impact.

Three, we need diversion, like drug courts. Non-violent offenders should not be serving hard time in our prisons. They need to be diverted from our prison system. (Applause.)

We need to make sure that we do deal with the distinction between crack and powder cocaine. And ultimately we need an attorney general and a system of justice that truly does treat people equally, and that has not happened under this administration. (Applause.)

There will be those who are skeptical of Holder's motives for doing this. I'm not one of them. I think he's seen the writing on the wall that Congress sits and twiddles its thumbs and talks the talk, but doesn't walk the walk. Holder is willing to stick his neck out and make changes defense lawyers have been clamoring for for more than 25 years. My response to Holder very simple: Thank you.