Appreciating the subtle and significant impact of DOJ charging policies on sentencing outcomes

We will wrap up our two-week sentencing of Rob Anon on Wednesday by noting the persistent discretion that still subsists within a federal sentencing system now filled with all sort of sentencing law.  The most obvious locus of modern federal sentencing discretion, and the form that still garners the most attention, resulted from the Supreme Court's landmark Booker ruling making the guidelines advisory instead of mandatory.  Please come to class thinking about whether and why you would be, as sentencing judge, inclined to "vary" from the guideline range you calculated for Rob Anon.  Please also think about what a federal prosecutor or public defender might argue to you that might make you more inclined to "vary" from the guideline range.

Also to be covered, as mentioned on Monday, is the prospect of Rob Anon being subject to a 924(c) charge carrying a seven-year mandatory minimum consecutive term for brandishing a gun while committing  "any crime of violence or drug trafficking crime."  This possibility highlights the extraordinary sentencing impact that prosecutorial charging/bargaining discretion can have, and we will work through its potential echo effects.  Notably, the import and impact of federal prosecutorial charging/bargaining discretion got some distinctive public attention in May of 2017 when Attorney General Jeff Sessions issued a new memorandum establishing charging and sentencing policies for the Department of Justice that essentially reversed memoranda issued by Attorney General Eric Holder giving more discretion to individual prosecutors as to what charges and sentences to pursue.  A post at my main blog provided this accounting (with my added highlights):

This memorandum is relative short and to the point, and here is some of its key language:

Charging and sentencing recommendations are crucial responsibilities for any federal prosecutor.  The directives I am setting forth below are simple but important.  They place great confidence in our prosecutors and supervisors to apply them in a thoughtful and disciplined manner, with the goal of achieving just and consistent results in federal cases.

First, it is a core principle that prosecutors should charge and pursue the most serious, readily provable offense. This policy affirms our responsibility to enforce the law, is moral and just, and produces consistency.  This policy fully utilizes the tools Congress has given us.  By definition, the most serious offenses are those that carry the most substantial guidelines sentence, including mandatory minimum sentences.

There will be circumstances in which good judgment would lead a prosecutor to conclude that a strict application of the above charging policy is not warranted.  In that case, prosecutors should carefully consider whether an exception may be justified.  Consistent with longstanding Department of Justice policy, any decision to vary from the policy must be approved by a United States Attorney or Assistant Attorney General, or a supervisor designated by the United States Attorney or Assistant Attorney General, and the reasons must be documented in the file.

Second, prosecutors must disclose to the sentencing court all facts that impact the sentencing guidelines or mandatory minimum sentences, and should in all cases seek a reasonable sentence under the factors in 18 U.S.C. § 3553.  In most cases, recommending a sentence within the advisory guideline range will be appropriate. Recommendations for sentencing departures or variances require supervisory approval, and the reasoning must be documented in the file.

This AP article about this new AG Sessions' memo provides this brief and effective account of what these directions change:

The directive rescinds guidance by Sessions’ Democratic predecessor, Eric Holder, who told prosecutors they could in some cases leave drug quantities out of charging documents so as not to trigger long sentences. Holder’s 2013 initiative, known as “Smart on Crime,” was aimed at encouraging shorter sentences for nonviolent drug offenders and preserving Justice Department resources for more serious and violent criminals.

Though Holder did say that prosecutors ordinarily should charge the most serious offense, he instructed them to do an “individualized assessment” of the defendant’s conduct. And he outlined exceptions for not pursuing mandatory minimum sentences, including if a defendant’s crime does not involve violence or if the person doesn’t have a leadership role in a criminal organization.

My hope is you can, with the help of our engagement with the Rob Anon case, now have a fuller and deeper appreciation for the potential impact, in individual cases and across a range of cases, of the May 2017 Sessions Memo.  We will discuss this matter a bit further in class on Wednesday.