On May 10, 2017, Attorney General Sessions issued his “Department Charging and Sentencing Policy”. This policy directive governs federal prosecutors across the country. In the federal criminal justice system, prosecutors already exercise great control of the sentencing process. Until now, they have had some discretion to decide whether to charge certain serious offenses that have statutory mandatory minimum prison sentences or which carry higher sentencing guideline ranges than related offenses. Now, Attorney General Sessions is ensuring that federal prosecutors will have virtually no discretion in deciding what offenses to charge and in negotiating plea agreements.
The memorandum requires federal prosecutors to “charge and pursue the most serious, readily provable offense”. Any decision to vary from this policy “must be approved by a United States Attorney or Assistant Attorney General, or a supervisor designated by the United States Attorney or Assistant Attorney General, and the reasons must be documented in the file.”
Sessions’ directive specifically rescinds previous policy memos from the Obama administration, including the policy that allowed prosecutors not to charge mandatory minimums in certain circumstances and the policy regarding using prior conviction enhancements in plea negotiations.
Thus, Assistant U.S. Attorneys will now be unlikely to do anything but charge the most serious offense with the highest possible sentence and to offer no relief whatsoever in a plea agreement.
It will be a grim landscape for federal criminal defendants who have unique mitigating factors or where application of mandatory minimums would be unjustly harsh. This will probably mean that more federal criminal cases will be contested at trial because in many cases there will be little incentive to plead guilty.
More so than ever, a person charged with a federal criminal offense will need representation by an experienced and qualified federal criminal defense attorney.