Attorney General's Office Puts Forth Important Memoranda Concerning Charging of Offenses

I got a newsletter from the Washington Post earlier today about memoranda put out by the Attorney General concerning charging of offenses. After reading the report and finding the memoranda on Professor Berman's Sentencing Law and Policy blog and the Justice Department, it appears that the Garland Justice Department is going to make substantial changes in the way that people are charged with crimes.

There are two memoranda that were put out on Friday. One memo was solely concerning the charging of offenders.  That memo will be discussed here. The second memo, solely about the drug offenders and its potential effect on the EQUAL Act, will be on our EQUAL Act Coverage.

Memo Regarding Charging of Offenses Generally

When a federal prosecutor should and should not charge someone:

The Memorandum opens up with a general explanation about when a person should be charged with an offense:

Threshold Requirement. The longstanding threshold requirement of the Principles of Federal Prosecution is 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. See JM § 9-27.200. That is, the prosecutor must believe that the person will more likely than not be found guilty beyond a reasonable doubt by an unbiased trier of fact and that the conviction will be upheld on appeal.

The memo also indicates that race, religion, gender, ethnicity, national original, sexual orientation, political association, activities, beliefs or a prosecutors personal beliefs about a case. Some of that should be obvious.

Selection of Charges:

The Memo also indicates how a prosecutor should determine how to charge someone:

Accordingly, in selecting the appropriate charges, prosecutors should consider whether the consequences of those charges for sentencing would yield a result 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." Janet Reno, Bluesheet on Charging and Plea Decisions, at 1-2 (May 1, 1994).  Such decisions should be informed by an individualized assessment of all the facts and circumstances of each particular case. The goal in any prosecution is a sanction that is "sufficient, but not greater than necessary," 18 U.S.C. § 3553(a), to satisfy these considerations.

Use of Mandatory Minimums

Perhaps  the most substantial portion of the memorandum is concerning mandatory minimums and their use:

The proliferation of provisions carrying mandatory minimum sentences has often caused unwarranted disproportionality in sentencing and disproportionately severe sentences. See Statement of the Judicial Conference of the United States before the House Judiciary Committee 5, 10 (July 11, 2014). For this reason, charges that subject a defendant to a mandatory minimum sentence should ordinarily be reserved for instances in which the remaining charges (i.e., those for which the elements are also satisfied by the defendant's conduct, and do not carry mandatory minimum terms of imprisonment) would not sufficiently reflect the seriousness of the defendant's criminal conduct, danger to the community, harm to victims, or other considerations outlined above. Prosecutors, in the exercise of their discretion and through discussions with their supervisors, should determine whether the remaining charges would, in fact, capture the gravamen of the defendant's conduct and danger to the community and yield a sanction"sufficient" to satisfy the considerations outlined above.

As a general matter, the decision whether to seek a statutory sentencing enhancement should be guided by these same principles.

Review, Documentation, Approval, Evaluation of Charging Decisions and Plea Agreements

The memo also indicates that charging, plea agreement decisions and mandatory decisions about use of mandatory minimums must all be approved by a supervisor which must be a section chief or its equivalent.  In the same vein,,plea agreements must also be approved by supervisors.

Sentencing Recommendations

The Memo also indicates that prosecutors should use the 3553(a) factors in determining what sort of sentencing recommendations to ask for. Prosecutors should let the court know all the relevant facts and criminal history that backs up their recommendations when they are speaking to the judge. If a prosecutor asks for an upward or downward variance there must be specific and articulable factors that are documented in the case file and those recommendations should be approved by a supervisor.

Application to Pending Cases

The memo indicates that policies reply to all prosecutions initiated no later than 30 days after the issuance of the memo.

In cases that have already been brought but final judgment has not been imposed, future decisions should be informed by these policies.

The Memo Regarding Drug Charges

As indicated, the second memo was the discussed how offenders should be charged with drug crimes specifically. We discussed the memo on how to charge people generally in a separate entry. The memo specifically on how to address crack cocaine cases is here.

Charging Mandatory Minimum Offenses

The memo indicates that mandatory minimums should not be used in drug cases if a defendant satisfies all the following criteria:

• The defendant's relevant conduct does not involve: the use of violence, the direction to another to use 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 does not have a significant managerial role in the trafficking of significant quantities of drugs;
• The defendant does not have significant ties to a large-scale criminal organization or cartel, or to a violent gang; and
• The defendant does not have a significant history of criminal activity that involved the use or threat of violence, personal involvement on multiple occasions in the distribution of significant quantities of illegal drugs, or possession of illegal firearms.

Even if someone meets some but not all of the above criteria, considerations still exist that might weigh into whether a mandatory minimum is sought:

In cases in which prosecutors determine that some but not all of the criteria are satisfied, prosecutors should not automatically charge the quantity necessary to trigger the mandatory minimum, but rather weigh the considerations set forth in this memorandum and the General Policies Memorandum to carefully determine, through the exercise of their discretion and in consultation with their supervisors, whether a Title 21 charge with a mandatory minimum sentence is appropriate.

And if the prosecutor does not have all the information they need to make a decision, they may file but then use their discretion to seek outcomes that do not trigger those minimums:

If information sufficient to determine that all of the criteria above are satisfied is available at the time initial charges are filed, prosecutors should decline to pursue Title 21 charges triggering a mandatory minimum sentence. If this information is not yet available, prosecutors may file charges involving these mandatory minimum statutes pending further information. If information that the criteria are satisfied is subsequently obtained, prosecutors should pursue a disposition that does not require a Title 21 mandatory minimum sentence. For example, a prosecutor could ask the grand jury to supersede the indictment with charges that do not carry mandatory minimum sentences; a defendant could plead guilty to a lesser included offense that does not carry the mandatory minimum; or a defendant could waive indictment and plead guilty to an information that does not charge the quantity necessary to trigger the mandatory minimum.

Sentencing Recommendations

The Memo also discusses certain situations where prosecutors should seek a variance whether upwards or downwards:

Certain cases in which the guidelines range does not adequately reflect the defendant's crime and culpability: At times, a low-level seller in a large-scale drug organization may be held responsible under the relevant conduct provisions of the Sentencing Guidelines for a large quantity of drugs that produces an advisory range near the top of the sentencing table. In such cases, prosecutors should consider supporting a downward departure or variance, particularly where all or most of the criteria listed on the first two pages of this memorandum are satisfied. Conversely, where the criteria are satisfied and yet the penalty yielded by the advisory guidelines range is not proportional to the seriousness of the defendant's conduct, prosecutors may consider seeking an upward departure or variance.

Certain cases in which the career offender guidelines range does not adequately reflect the defendant's crime and culpability: Similar consideration should be given in a case in which the defendant is subject to sentencing under the career offender guideline, see U.S.S.G. § 4B 1.1, which is designed to trigger guideline ranges at or near statutory maximum sentences. In a case in which all or most of the listed criteria are present, and the defendant's status as a career offender is predicated only on the current and previous commission of nonviolent controlled substance offenses, prosecutors should consider supporting a downward variance to the guidelines range that would apply in the absence of career offender status.2 (For purposes of this memorandum, nonviolent offenses are those that do not involve the actual or threatened use of a weapon or other means of violence.) Conversely, if the defendant's prior convictions involved the actual or threatened use of violence, but the crimes do not qualify as career offender predicates under the "categorical approach," if appropriate prosecutors may consider advocating for an upward variance, including toward the career offender range.

Commentary:  Our Thoughts

All of this sounds fine in practice. these are things that should be followed in practice in order to have appropriate prosecutions.

The biggest thing that we see here is regarding mandatory minimums. I have heard colloquially that police and prosecutors file 851's and seek mandatory minimums in order to encourage pleas and cooperation against codefendants and coconspirators, especially in drug conspiracy cases.  This is going to cause some of that leverage to go away, but there will always be exceptions.

The Attorney General is sure to state that nothing in this memo is going to create new rights that were not already present. In other words, no one will be able to file a motion for relief explicitly based on this memo alone; as in there will be no "motion for relief because of the memo." If a person is already in  prison then this memo won't necessarily be helpful.  MAYBE it could fit in a 3553(a) argument under a compassionate release but that will depend on the court.