DOJ To Prosecutors: Think Twice And Ask Permission Before Charging

Last week, Attorney General Merrick Garland issued a new DOJ charging and sentencing policy memorandum, replacing existing guidance to federal prosecutors in their exercise of prosecutorial discretion. The thrust of the extraordinary new policy is that prosecutors are no longer expected to charge the highest most readily provable offense, but rather to consider potential punishments and to exercise discretion to reduce defendants' sentencing exposure. It appears to be a policy of leniency intended to mitigate the increasing number of mandatory minimum sentences that Congress promulgated over recent decades in a number of areas.

While the memorandum reaffirms familiar guidance set forth in the Principles of Federal Prosecution  and the Justice Manual, it announces robust new policies that direct prosecutors to take a different approach to charging decisions, plea resolutions, and sentencing recommendations, the effect of which swings the pendulum away from the very