The Sessions Memo: A Significant Reversal of Policy?
In May 2017, Attorney General Jeff Sessions issued a memorandum to U.S. attorneys, ordering all federal prosecutors to "charge and pursue the most serious, readily provable offense" as a "core principle" of charging and sentencing policy. The memorandum defines the most serious offenses as "those that carry the most substantial guidelines sentence, including mandatory minimum sentences."
This policy represents a significant reversal of the comparatively lenient stance established by Eric Holder, one of Sessions’ predecessors under President Barack Obama, who had ordered federal prosecutors in 2013 to refrain from charging defendants with certain offenses that could see long mandatory minimum sentences.
Prosecutors will now be expected to recommend a sentence within federal guidelines when before a federal judge, and must disclose to the sentencing court all of the facts that impact the sentencing guidelines or mandatory minimum sentences. Recommendations outside of the guidelines will require a documented explanation, as well as approval from a U.S. attorney, assistant attorney general, or a designated supervisor. Deviations from the "core principle" of pursing the most serious offenses will only be granted if "justified by unusual facts."
Attorney General Sessions made it clear that he wants this shift in policy to be immediate, noting that "[a]ny inconsistent previous policy of the Department of Justice relating to these matters is rescinded, effective today." — ©2017 BLANK ROME LLP
© 2017, Blank Rome LLP. All rights reserved. Please contact Blank Rome for permission to reprint. Notice: The purpose of this update is to identify select developments that may be of interest to readers. The information contained herein is abridged and summarized from various sources, the accuracy and completeness of which cannot be assured. This update should not be construed as legal advice or opinion, and is not a substitute for the advice of counsel.