On Friday, January 29, 2021, the Biden Department of Justice issued an important memorandum to all federal prosecutors about how to make charging decisions in federal criminal cases. The memorandum on “Interim Guidance on Prosecutorial Discretion, Charging, and Sentencing,” marks a return to the Obama-era policy on prosecutorial discretion.
Trump DOJ Wanted Maximum Charge Available
In 2017, the Attorney General of the United States under Donald J. Trump issued a directive to all prosecutors about how to make charging decisions in federal criminal cases. That directive was entitled Department Charging and Sentencing Policy (2017).
In the 2017 directive from Donald Trump’s DOJ, it was made clear that prosecutors were supposed to bring the most severe charges available under the law in each case. Put simply, prosecutors in the Trump-era were told to go find the harshest criminal penalties which could apply in any case and seek an indictment on those charges.
This was a reversal from the previous policy of the DOJ which instructed prosecutors to use their best judgment to determine which charges were appropriate in a given case.
Return to Prosecutorial Discretion in Federal Charges & Sentencing
Today, there is no person who is actually confirmed to act as the Attorney General of the United States yet. This is because President Biden’s nominee has not yet received a confirmation vote in the United States Senate as required by the U.S. Constitution for cabinet level appointees.
However, there is an acting Attorney General in place who has the authority to change DOJ policies. The January 29th memo on prosecutorial discretion did exactly that. According to the memo, the goal of this policy change is to return prosecutorial discretion so that prosecutors are able to evaluate the facts of each case independently:
Comparison of Different Federal Charges
This is a significant policy change. Under the guidance from the Trump DOJ, prosecutors were not free to bring only less harsh criminal charges when a harsher charge might be technically provable under the law.
For example, if an individual could have been charged with only receipt or possession of child pornography under 18 U.S.C. § 2252 that charge would carry a mandatory minimum of only 5 years in prison. However, in many instances, prosecutors could also meet the technical elements of production of child pornography (or an attempt to produce) under 18 U.S.C. § 2251 as well. A charge of child pornography production carries a mandatory minimum sentence of 15 years instead of 5 years for mere possession or receipt of the same content.
Trump Era DOJ
Biden Era DOJ
Under the Trump DOJ directives a prosecutor would be required to bring charges which imposed a 15-year mandatory minimum for defendants even if that prosecutor thought the case was really about receipt of child pornography. This fact scenario has actually happened in multiple cases across the country.
The Biden-DOJ memo would allow that same prosecutor to recognize that seeking a mandatory 15-year minimum prison sentence might not be appropriate. Under the Biden DOH charging guidance, the prosecutor can use their own personal discretion to decide that a lesser criminal charge is more appropriate in a particular case.
In Conclusion: A Worthy Step Towards Ethical Discretion
Prosecutors ultimately have more discretion in the American judicial system than any other person, including federal judges. They decide who to charge, when to bring charges, and which charges are going to be brought.
Allowing prosecutors the freedom to seek less punitive criminal charges in federal court when they think the facts call for it is an important step towards fixing our system. Untying the hands of judges by lowering all mandatory-minimum sentences is the real way to fix many of the real problems.
The Biden administration took a step in the right direction with their January 29, 2020, memo on prosecutorial discretion. A small step, but still one that is worth commending.