On May 12, 2017, U.S. Attorney General Jeff Sessions issued a memorandum to all federal prosecutors, entitled “Department Charging and Sentencing Policy,” which dramatically changes existing policies and procedures for federal prosecutors. Department Charging and Sentencing Policy (May 10, 2017) (“Sessions Memorandum”). The Sessions Memorandum requires prosecutors to (1) charge the “most serious, readily provable offense” available; and (2) disclose all facts impacting sentencing to the sentencing court and to advocate for a sentence falling within the range in the United States Sentencing Guidelines (the “Guidelines”) in most cases. The memorandum also rescinds all inconsistent policies, including two memorandums issued by former Attorney General Eric Holder, which provided wider latitude to prosecutors in their charging and sentencing decisions. The Sessions Memorandum cites fairness and consistency as the objectives of the new policies, seeking to “achiev[e] just and consistent results in federal cases.”

With respect to charging decisions, the Sessions Memorandum states that “it is a core principle that prosecutors should charge and pursue the most serious, readily provable offense.” The Memorandum explains that this policy, among other things, “produces consistency,” and “fully utilizes the tools Congress has given us.” This is a significant change from the charging policies in place under Attorney General Holder, which afforded federal prosecutors much more latitude in considering what charges to file. Those policies required federal prosecutors to “ordinarily charge ‘the most serious offense that is consistent with the nature of the defendant’s conduct, and that is likely to result in a sustainable conviction,’” but also required the prosecutor to conduct an individualized assessment of the factors in the case, including whether the charges fit the case, were consistent with the purposes of the law and general purposes of criminal law enforcement, and would maximize the use of federal resources in prosecuting crimes. Department Policy on Charging and Sentencing (May 19, 2010). The Sessions Memorandum notably eliminated all elements of that individualized assessment in outlining the new charging and sentencing policies—other than stating that exceptions can be requested on a case-by-case basis with the approval of a U.S. Attorney or Assistant Attorney General and that such reasons must be documented in the file.

With respect to sentencing, the new policy requires federal prosecutors to disclose to the court “all facts that impact the sentencing guidelines or mandatory minimum sentences,” and states that “in most cases” a Guidelines sentence will be appropriate. The Sessions Memorandum represents less of a sea change for the Department’s sentencing policy, as the policies under Attorney General Holder provided that “in the typical case” a Guidelines sentence would be appropriate and that federal prosecutors should “generally continue to advocate” for a sentence within that range. But the applicable policy under Holder also emphasized that “advocacy at sentencing—like charging decisions and plea agreements—must also follow from an individualized assessment of the facts and circumstances of each particular case.” These individualized factors at sentencing are not directly referenced in the Sessions Memorandum.

The Sessions Memorandum will have clear-cut impacts on certain types of offenders, particularly in the violent crime and narcotics context, where charging “the most serious, readily provable offense” can lead to severe, mandatory minimum sentences. Prior charging policies typically reserved such sentences for the most serious offenders, but those have been rescinded. The impact of these policies in the white collar context is less clear and likely will depend on the particular approaches that each U.S. Attorney takes to implement these new policies in his/her district.

One likely result is a more stringent approach that federal prosecutors take at sentencing in white collar cases. Many Judges, for example, have imposed below Guidelines sentences in various cases in recent years, recognizing that the Guidelines range is driven by the “loss” amount, which can lead to draconian results in the white collar context and is inconsistent with the purposes of sentencing, as set forth in applicable statutes, see, e.g., 18 U.S.C. s 3553(a). While defense counsel can expect less flexibility from federal prosecutors at the sentencing phase of such cases given the Sessions Memorandum, it is less likely that sentencing judges will be affected by this change in policy. After Booker, Judges continue to have discretion in electing whether to impose a sentence within or below the Guidelines range, and the particular sentence sought by federal prosecutors is therefore entitled to less weight where there is no applicable mandatory minimum sentence.

Click here to view Department Charging and Sentencing Policy (May 10, 2017) 

Click here to view Department Policy on Charging and Sentencing (May 19, 2010)