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January 9, 2023

Wondering about the impact of AG Garland's new charging and sentencing memos

Remarkably, it has already been almost a month since Attorney General Merrick Garland issued new charging and sentencing policy guidance for Justice Department prosecutors through two memoranda (basics here).  These memos received some press attention (and some blog commentary) when first issued in mid December.  But, somewhat surprisingly, I have not since seen all that much continued commentary or further echoes concerning AG Garland's instructions to federal prosecutors to "promote the equivalent treatment of crack and powder cocaine offenses" and other notable aspects of these notable memos. 

Of course, with the holidays and all, it is surely too early to be expecting to see the full impact or fall out from these DOJ memos.  Still, given that the instructions in these memos impact every federal criminal case in some way, I am continuing to expect these memos to generate notable cases and controversies before too long.  And, while waiting, I have now had the honor and pleasure of working with former ENDY US Attorney Alan Vinegrad to write up a short overview of the memos for coming publication in the February 2023 issue of the Federal Sentencing Reporter.  The draft of that overview is available for download below, and it starts this way:

On December 16, 2022, United States Attorney General Merrick Garland issued long-awaited guidance setting forth the Department of Justice's latest charging, plea and sentencing policies. He did so in the form of two memos: one providing general policies for all criminal cases (the "General Memo"), and a second providing additional policies for drug cases (the "Drug Memo").

These latest DOJ policies are generally consistent in many respects with past policies issued by Attorney General Garland's predecessors, but they break new ground (or revive previously-rescinded policies) in several areas: mandatory minimum statutes, statutory sentencing enhancements, the crack/cocaine sentencing disparity, and pre-trial diversion.  All of these new policies tack in the same direction: ameliorating the harshness of the modern-era federal sentencing regime.

Download Vinegrad and Berman for FSR on new DOJ policies

January 9, 2023 at 02:17 PM | Permalink


Get invited into the Capitol and walk around and leave--get them. Bend over backwards to give an axe back to the guy who busted up a GOP Senator's office.

Let's ignore actual violence against clinics while sending SWAT teams for weak FACE Act cases ... .

Garland is a thug. He's gonna hook up thug drug dealers.

Posted by: federalist | Jan 9, 2023 3:36:47 PM

Maybe Merrick oughta be looking at this:


Posted by: federalist | Jan 9, 2023 4:24:38 PM

If AG Garland made a habit of checking out this blog, he'd have seen about the Chicago bail report last month: https://sentencing.typepad.com/sentencing_law_and_policy/2022/12/freedom-denied-how-the-culture-of-detention-created-a-federal-jailing-crisis.html

Posted by: Doug B. | Jan 9, 2023 4:32:40 PM

Feels like the authors have a point. The other thing I don't like--semi-home detention--if that doesn't count towards sentence. If people's movements are greatly constrained, then it's like serving time. If they don't commit crime while out on bail, ain't that win-win?

Posted by: federalist | Jan 9, 2023 4:55:45 PM

A related issue we are seeing more of here in Kentucky is the use of electronic ankle monitors (GPS) for people released on bond (even on misdemeanor assault cases) and for home incarceration (with work release) while people serve sentences of up to 60 days. These monitors cost the defendant $8 per day or $240 per month. Those on pre-trial release (out on bail) can wear such ankle monitors for more than 6 months before their cases reach trial or plea, generating tabs of more than $1,500 each. If these bills are not paid, people can be sent back to jail for failure to comply with conditions of pre-trial release, or, after the ankle monitor is removed, sent to collections if not paid in full within 30 days. In part, the growth of the use of ankle monitors on those with pre-trial release is because the local jail, the Fayette County Detention Center, is 118 officers short of the number needed to properly operate the jail. Many of the remaining officers are working 3 double shifts per week, and getting burned out. The Lexington-Fayette Urban County Government spends more than $40 million per year operating the jail (14% of the government's total budget), but even with recent wage increases, they cannot get it properly staffed. One way to keep down the head count is to reduce the bonds of inmates and put them on electronic ankle monitors. It is common for defendants with relatively short sentences (such as 4 to 10 days for DUI) to get home incarceration with electronic monitoring. But recently, because of a unique set of circumstances, we got a client sentenced to 60 days of home incarceration (with work release) for possession of heroin. The defendant had been regularly employed and participating in a methadone treatment program for more than 2 years. Sending him to jail for 6 months would have destroyed his life and cost him is job, his apartment and his medicallly-assisted treatment program.

Posted by: Jim Gormley | Jan 12, 2023 6:43:45 AM

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