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March 22, 2021 Practice Points

DOJ Issues Interim Policy Allowing for Prosecutorial Discretion in Criminal Prosecutions

The DOJ returns to a policy of prosecutorial discretion in federal charging and sentencing reversing the previous directive under the Trump administration for prosecutors to charge the most serious offense and seek the harshest sentence possible.

By Sheena Foye and James R. Wyrsch

On January 29, 2021, the Department of Justice (DOJ) under Acting Attorney General Monty Wilkinson issued a memorandum to all federal prosecutors entitled “Interim Guidance on Prosecutorial Discretion, Charging and Sentencing”. The current interim policy marks a return of the policy enacted by former Attorney General Eric Holder (see Department Charging and Sentencing Policy issued on May 19, 2010). Acting Attorney General Wilkinson stated, “The goal of this interim step is to ensure that the decision 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 went on to state that “the reasoned exercise of prosecutorial discretion is critical to the fairness, effectiveness, and integrity of the criminal justice system.” This is a reversal of the Trump-era DOJ policy (see Department Charging and Sentencing Policy issued on May 10, 2017) which required prosecutors to bring the most serious charge possible and seek the harshest penalty possible without room for discretion. This policy left some defendants facing sentences and charges that were fundamentally unfair given the facts of their particular case. On March 10, 2021, the senate voted to approve Merrick Garland as the new attorney general. It is believed that Attorney General Garland will continue to use the January 29, 2021, policy while he works to develop a longer-term plan for the next four years.

This is an important policy change for criminal practitioners and one they should be cognizant of as they negotiate cases pre- and post-charge. For example, you might have a client where the government could technically make all the elements of production of child pornography under 18 U.S.C. §2251, a 15-year minimum. This current policy allows the prosecutor the discretion to charge receipt or possession of child pornography under 18 U.S.C. §2252, a 5-year minimum, if the particular facts or your case warrant the lesser charge/sentence. Criminal practitioners can now more effectively present mitigating arguments to prosecutors who are not bound by a policy that prevents them from considering an individualized assessment of each case.

Sheena Foye and James R. Wyrsch are with Wyrsch Hobbs Mirakian P.C., in Kansas City, Missouri.

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