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.
