On December 16, 2022, Attorney General Merrick Garland introduced new policies for federal prosecutors to follow when charging crimes that have mandatory minimum sentences.
The Attorney General explained that historically, once the government decided to prosecute an individual, the appropriate charge likely included, “the most serious offense that is encompassed by [the defendant’s] conduct and that is likely to result in a sustainable conviction.”
But, this standard was adopted in 1980, when most federal offenses did not carry a mandatory minimum term of imprisonment and prior to the creation of the U.S. Federal Sentencing Guidelines. Attorney General Garland admitted that, “[t]he proliferation of provisions carrying mandatory minimum sentences has often caused unwarranted disproportionality in sentencing and disproportionately severe sentences.”
Now, to ensure that punishments are proportional to the defendant’s conduct and to achieve the goal of imposing punishments that are “sufficient, but not greater than necessary,” charging decisions must be informed by an individualized assessment of all the facts and circumstances of each particular case. If charges that do not have mandatory minimum sentences nevertheless “sufficiently reflect the seriousness of the defendant’s conduct, the danger the defendant poses to the community, or other important federal interests,” prosecutors should forego pursuing the mandatory minimum charge. Plea agreement and sentencing recommendations should be governed by the same principles.
These new policies will be particular impactful in drug cases, “where mandatory minimum sentences based on drug type and quantity have resulted in disproportionately severe sentences for certain defendants and perceived and actual racial disparities in the criminal justice system.” Therefore, Attorney General Garland has directed federal prosecutors to not charge the drug quantity necessary to trigger a mandatory minimum sentence if the defendant satisfies the following criteria:
1. the defendant’s conduct does not involve (a) the threat, use, or direction to another to use violence, (b) possession of a weapon, (c) trafficking drugs to or with minors, or (d) the death or serious bodily injury of any person;
2. the defendant does not have a significant managerial role in the trafficking of significant quantities of drugs;
3. the defendant does not have significant ties to a large-scale criminal organization or cartel, or to a violent gang; and
4. the defendant does not have a significant history of criminal activity involving violence, repeated involvement in drug trafficking, or possession of illegal firearms.
Importantly, Attorney General Garland also reiterated the Justice Department’s support of the “elimination of the crack-to-powder sentencing disparity[.]” Until this disparity is officially removed, he has directed all federal prosecutors accordingly:
1. if a crack cocaine charge that carries a mandatory minimum sentence is deemed warranted, prosecutors should charge statutory quantities that apply to powder cocaine offenses; and
2. at sentencing, prosecutors should advocate for a sentence consistent with the guidelines for powder cocaine rather than crack cocaine.
These new policies are “intended solely for the guidance of attorneys for the government” and “are not intended to create a substantive or procedural right or benefit, enforceable at law[.]” Nevertheless, if the Offices of the United States Attorneys do implement these procedure as directed, hopefully we will start to see more appropriate charging decisions by prosecutors and fairer sentences imposed by courts.
