In December 2022, Attorney General Merrick Garland issued a new Department of Justice (DOJ) charging, pleas, and sentencing policy memorandum (Policy). While the memorandum affirms the previous DOJ guidance in the Principles of Federal Prosecution (Principles), the new Policy provides for additional prosecutorial discretion in charging, plea agreements and the sentencing process.
Threshold Requirement. The Policy affirms the threshold requirement of the Principles that a prosecutor may not commence a prosecution unless it is probable that the admissible evidence will be sufficient to obtain and sustain a conviction.
Federal Interest/ Non-Federal Alternatives. The Principles further provide that, even when the threshold requirement is satisfied, a prosecutor should not commence a prosecution if the prosecution would not serve a substantial federal interest or the person is subject to adequate alternatives to federal prosecution. In determining whether a prosecution would serve a substantial federal interest, the prosecutor should weigh all relevant considerations, including federal law enforcement priorities; the nature and seriousness of the offense; the deterrent effect of prosecution; the person’s culpability in connection with the offense; the person’s history with respect to criminal activity; the person’s willingness to cooperate in the investigation or prosecution of others; the person’s personal circumstances; the interests of any victims; and the probable sentence or other consequences if the person is convicted. In determining whether adequate alternatives to federal prosecution are available, the prosecution should consider prosecution by other jurisdictions and federal or state civil or administrative remedies, or pretrial diversion. Every district is directed to develop an appropriate pretrial diversion policy.
Impermissible Considerations. In determining whether to commence prosecution, a prosecutor may not be influenced by the person’s race, religion, gender, ethnicity, national origin, or sexual orientation; or political association, activities, or beliefs; or the prosecutor’s personal feelings or self-interest. Charges may not be filed, nor the option of filing charges raised, simply to exert leverage to induce a plea.
Selection of Charges. While recognizing that charges will ordinarily include “the most serious offense that is encompassed by [the defendant’s] conduct and that is likely to result in a sustainable conviction,” the Policy acknowledges the many mandatory minimums statutes enacted since the Principles were adopted in 1980. Accordingly, in selecting the appropriate charges, prosecutors should now consider whether the consequences of those charges would yield a sentence that “is proportional to the seriousness of the defendant’s conduct, and whether the charge achieves such purposes of the criminal law as punishment, protection of the public, specific and general deterrence, and rehabilitation.” (Citation omitted).
Mandatory Minimum Offenses. Recognizing that the proliferation of provisions carrying mandatory minimum sentences has often caused unwarranted disproportionality in sentencing and disproportionately severe sentences, charges that subject a defendant to a mandatory minimum sentence should ordinarily be reserved for instances in which the remaining charges would not sufficiently reflect the seriousness of the defendant’s criminal conduct, danger to the community, harm to victims, or other considerations. The DOJ also issued an accompanying memorandum which provides additional policies for charging offenses in drug cases.
Review, Documentation, Approval, and Evaluation of Charging Decisions. To ensure consistency and accountability, charging and plea agreement decisions must be reviewed by a supervisory attorney. Any decision to include a mandatory minimum charge in a charging document or plea agreement must also obtain supervisory approval.
Plea agreements are governed by the same fundamental considerations described above for charging decisions. Charges should not be filed simply to exert leverage to induce a plea. Nor should charges be abandoned to arrive at a plea bargain that does not reflect the seriousness of the defendant’s conduct.
The Policy emphasizes the 18 USC §3553(a) factors. While it states that prosecutors should generally continue to advocate for a sentence within the Sentencing Guideline range, prosecutors should consider whether Guidelines’ departures are appropriate, and if so, should advocate for their application.
Application to Pending Cases
In cases in which charges have already been brought prior to the effective date of the Policy, but in which a final judgment after sentencing has not been imposed by the district court, the Memorandum directs that future decisions in such cases should be informed by the policies contained in these memoranda. Also, the accompanying policy regarding drug cases applies to all prosecutions initiated no later than 30 days after the issuance of these memoranda.
While the Policy applies to all criminal violations, it will particularly affect charging decisions in drug cases. However, it should impact charging decisions in certain White Collar Criminal Cases, such 18 U.S.C. §225, Continuing Financial Crimes and Enterprises which has a 10-year mandatory minimum, and 18 U.S.C. §1028A, Aggravated Identity Theft which has a two-year mandatory minimum and is often used in healthcare fraud cases. The Policy could also significantly impact the plea bargaining and sentencing process for all federal criminal cases, including white collar. The return to prosecutorial discretion is a welcome change that should result in more just outcomes.