Attorney General Announces New DOJ Charging and Sentencing Policy

By: Jennifer H. Bouriat

On May 10, 2017 Attorney General Jeff Sessions issued a memorandum to all federal prosecutors setting out the new administration’s policy on charging and sentencing. The directive may result in more frequent use of mandatory minimums and longer sentences for offenders.

Under the new policy, federal prosecutors are directed to charge and pursue the “most serious” and readily provable offense, defined as “those that carry the most substantial guidelines sentence, including mandatory minimum sentences.”  The memorandum recognizes that there may be some limited circumstance in which prosecutors find that strict application of the charging policy is not warranted.  In remarks to New York City law enforcement on Friday, May 12, the Attorney General noted that his policy gives prosecutors discretion to avoid sentences that would result in an injustice.  Assistant United States Attorneys must, however, obtain approval to charge less than the most serious offense.

The policy represents a stark reversal of the charging guidelines crafted by the Obama administration, which directed prosecutors not to charge defendants with crimes that carried mandatory minimum sentences under Title 21 based on drug type and quantity where the defendant met certain criteria, including that the defendant’s conduct did not involve violence, trafficking to minors, or serious injury or death.  The reversal of the former administration’s charging guidelines affects prosecutors’ ability to consider the individualized circumstances and characteristics of defendants implicated in drug offenses at the charging stage.

The new memorandum addresses sentencing policy as well.  It requires prosecutors to disclose to the sentencing court all facts that impact the sentencing guidelines or mandatory minimum sentences and to seek a reasonable sentence under the § 3553 factors in all cases. According to the policy, sentences imposed within the guideline range will be considered appropriate in most cases.

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