June 14, 2017
John Roberts, Esq.
Arseneault & Fassett, LLP
The Attorney General of the United States, Jeff Sessions, has issued a memorandum to all federal prosecutors establishing the strict new policy of the Trump Administration’s Department of Justice (DoJ) for charging and sentencing federal offenses. The “Sessions memo” overturns a series of “Holder memos,” issued during the Obama administration, which had urged prosecutors to avoid charging crimes that carry mandatory terms of imprisonment in certain cases.
The Sessions memo outline two broad directives. First, federal prosecutors are to “charge and pursue the most serious, readily provable offenses.” Leaving nothing to the imagination, the memo defines “serious” offenses as “those that carry the most substantial guidelines sentence, including mandatory minimum sentences.” Second, the memo directs prosecutors to disclose to the sentencing court all facts that could impact a judge’s sentencing decision, and to seek sentences within the U.S. Sentencing Commission’s Guidelines. Any Government recommendations for variances or departures from the Guidelines requires the approval of supervisors. Further, prosecutors who wish to deviate from the principles of the memo must justify such with “unusual facts” and must document those special circumstances for the file.
The Sessions memo explicitly rescinds any previous DoJ policies which would be inconsistent with the new one, and it specifically cites the Holder memos issued in 2013 and 2014. The Holder memos had directed prosecutors to avoid seeking mandatory-minimum and enhanced sentences for nonviolent, low-level drug-distribution defendants who were not part of large-scale criminal organizations and did not have significant criminal records. Those relatively lenient policies are now history under the Trump administration.
By requiring front-line prosecutors to pursue the most serious provable charges and disclose all relevant facts to the sentencing court, the new policy seeks to deny them a major avenue of prosecutorial discretion — the ability to be flexible and reasonable in applying the law to the specific circumstances of each defendant to obtain the most just result. In light of these new policies, it is more important than ever in certain cases where a person is under scrutiny by federal law enforcement for an experienced criminal defense attorney to interface with prosecutors as early in the process as possible. In such cases, an early resolution may prove more favorable for the client than would be possible after an investigation has developed to the point where unreasonably serious charges are filed and prosecuted.