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January 29, 2021

Interim Attorney General releases new "Interim Guidance on Prosecutorial Discretion, Charging and Sentencing"

601446752800005c00974ec2Via this HuffPost piece, headlined "DOJ Pulls Trump Administration’s Harsh Charging And Sentencing Policy," I see that the failure of the Biden Administration to yet have a new confirmed Attorney General is not keeping it from having a new prosecutorial charging and sentencing policy.  Well, actually, the Biden Justice Department now has an old charging and sentencing policy, as explained by HuffPost:

In a memo to all federal prosecutors obtained by HuffPost, acting Attorney General Monty Wilkinson rescinded a May 10, 2017, memo from then-Attorney General Jeff Sessions.  At the time, Sessions told federal prosecutors across the country to always pursue to harshest charges and penalties possible unless they received specific permission from their supervisors.

“The goal of this interim step is to ensure that decisions about charging, plea agreements, and advocacy at sentencing are based on the merits of each case and reflect an individualized assessment of relevant facts while longer-term policy is formulated,” Wilkinson wrote.

Under Donald Trump-era policies, prosecutors were instructed to always disclose any facts that would trigger mandatory minimum sentences during the sentencing process.  If a prosecutor wished to recommend a departure or variance to a judge during the sentencing process, they were also told to get a supervisor’s approval.

For now, the Justice Department is reverting back to a 2010 charging and sentencing policy issued by former Attorney General Eric Holder.  Under Holder’s guidelines, federal prosecutors were encouraged to focus on “individualized justice” and decision-making based on “the merits of each case.”

This change is not unexpected, but it is still a big deal (and really a much bigger deal than the recent Executive Order on private prisons). Because this is a big deal, I am quite disappointed this change is announced on a Friday afternoon and without seemingly any official statement (yet) from the Justice Department.  Because we are still awaiting confirmation hearings for AG-nominee Merrick Garland, I suppose I can understand why this is getting a "soft launch" and is merely a partial reversal back to prior Obama-era policies.  But, at a time when there is a real interest and concern for criminal justice reform, this memo could be a real "teaching moment" if handled differently.  Sigh.

January 29, 2021 at 05:49 PM | Permalink

Comments

So, what are they going to do about all the people who rights were violated and charged with ghost amount of dope, this is exactly what they are repealing. These people spending decades in prison for words need to be released, NOW.

Posted by: Lisa Sciretta | Jan 29, 2021 6:01:41 PM

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