The Department of Justice Issues New Guidance on Charging, Pleas, and Sentencing

• Jurisdiction: United States,Federal
• Publication year: 2023
• Citation: Vol. 1 No. 3

[Page 205]

John J. Delionado, Kevin E. Gaunt, and Martha Saine Condyles ^*

In this article, the authors discuss a memorandum issued recently by U.S. Attorney General Merrick Garland that makes it clear that prosecutors must give careful thought to making charging decisions consistent with the ultimate goal of achieving a sanction that is sufficient, but not disproportionate, to redress and deter the wrongdoing.

U.S. Attorney General Merrick Garland has issued a memorandum ¹ (the memorandum or the Garland memo) providing updated guidance to federal prosecutors on the Department of Justice's (DOJ) general policies regarding charging, pleas, and sentencing for federal offenses. ² The memorandum reflects a gentler prosecutorial tone with potentially positive implications for criminal defendants, including in the white-collar and corporate criminal enforcement context.

Guidance on Charging Decisions

The memorandum restates the long-standing DOJ policy that a prosecutor should not initiate a prosecution unless it is probable that the admissible evidence is sufficient to obtain a conviction and that the conviction will be upheld on appeal. However, even if this threshold is met, prosecution should not ensue if it would not serve a "substantial federal interest" or if adequate alternatives to prosecution are available.

In determining the sufficiency of serving a federal interest, prosecutors must conduct an "individualized assessment" and "weigh all relevant considerations," including the nature and seriousness of the offense, the individual's history with respect to criminal activity, their willingness to cooperate in the investigation of others, their "personal circumstances," and the probable sentence, if convicted. In assessing...