As a top Chicago criminal lawyer, I have been asked to comment on the new Department of Justice Memo regarding charging federal criminal defendants in federal drug cases. This is certainly great news for federal criminal defense lawyers and their clients. Of course, it will be critical that these Policies are actually carried out, and it will be interesting to see how much of an immediate impact those will have in various federal districts.
With regard to the Memo, on December 16, 2022, the Attorney General of the United States issued a Memo to all federal prosecutors regarding the Department of Justice’s “Policies Regarding Charging, Pleas, and Sentencing in Drug Cases.” The Memo indicates, at the outset, that it is intended to provide “additional, specific policies regarding charging, pleas, and sentencing in drug cases — consistent with the priority the Department has placed on focusing its prosecutorial resources on combatting violent crime.”
The Memo then addresses particular recurring issues. With respect to “Charing Documents and Plea Agreements,” the Memo first addresses one of the most important issues to federal criminal defendants, which is the charging of mandatory minimum offenses. The Policy emphasizes that the charging of drug offenses that have mandatory minimum sentences associated with them should generally be limited to circumstance where “the remaining charges … would not sufficiently reflect the seriousness of the defendant’s criminal conduct, danger to the community, harm to victims” and “such purposes of the criminal law as punishment, protection of the public, specific and general deterrence, and rehabilitation.” The Policy further recognizes what federal criminal defendants and their attorneys have been saying for a very long time, i.e., that mandatory minimum sentences in federal drug cases often result in “disproportionately severe sentences.”
Therefore, the Memo specifically advises that, in federal drug cases in which mandatory minimum sentences are applicable because of the drug type and quantity, federal prosecutors should not bring (“decline”) charges that trigger a mandatory minimum based upon the drug quantity – if the defendant satisfies certain criteria. Those criteria include, among other things, situations where the defendant’s other “relevant conduct” does not involve violence, or trafficking drugs to minors, or death or serious injury. Those criteria also include situations where the defendant did not have the role of a manager with respect to the drug offense charged. There are other criteria in the Memo for federal prosecutors to consider in not charging drug quantity levels that would trigger a mandatory minimum. Another positive aspect of the policies set forth in the Memo is that they indicate that federal line prosecutors will have to obtain approval from a designated supervisory attorney in order to charge a federal drug offense that has an associated mandatory minimum.
Moreover, with respect to cases that are currently pending, the Memo makes clear that federal prosecutors can supersede what has already been indicted by returning to a Grand Jury and gaining the approval to charge a drug offense that does not have an associated mandatory minimum – in place of the initially charged offense.
The Memo also addresses the issue of sentencing recommendations. In the context of federal drug cases, the Memo emphasizes that requests by federal prosecutors for below Guidelines sentences may be particularly appropriate in certain situations, including those where “low-level sellers” in larger drug operations may face overly harsh sentences because of the total drug amount involved with respect to the organization as a whole. The Memo further indicates that requests by federal prosecutors for below Guidelines sentences may likewise be appropriate where a “career offender” designation overstates the defendant’s crime and culpability – particularly where the defendant’s career offender status is predicated on prior offenses that were “nonviolent controlled substance offenses.”
Finally, the Memo addresses the issue of “crack cocaine cases.” The Memo takes a firm position that the Justice Department supports the complete elimination of the crack-to-powder sentencing disparity that has existed for far too long. Consequently, the Memo directs federal prosecutors in crack cocaine cases to take affirmative steps to attempt to bring about the equivalent treatment by federal district courts of crack and powder cocaine offenses.
The Policy is unquestionably music to the ears of federal criminal defense lawyers and their defendant clients. We certainly hope that the federal district courts will find the Justice Department’s Memo and policy position therein on all of the above issues to be persuasive at all stages of federal drug crimes.
Written by Michael Leonard
Leonard Trial Lawyers
February 3, 2023