AG Garland memo: A roadmap for more proportionate decisions

On December 16, 2022, Attorney General Merrick Garland published a memorandum for prosecutors entitled “General Department Policies Regarding Charging, Pleas, and Sentencing,” Attorney General Memorandum - General Department Policies Regarding Charging Pleas and Sentencing (justice.gov) (hereafter “Garland Memo”). The Garland Memo encourages individualized assessment and discretion aimed at achieving the “fair administration of justice” and a priority on violent crime.

The principal tenets of the Garland Memo are:

• Initiating and declining prosecution: Prosecutors should base their charging decisions on the longstanding standard of more-likely-than-not conviction beyond a reasonable doubt, but are encouraged to evaluate other alternatives to federal prosecution such as state/local/non-punitive alternatives.
• Selection of charges: Selection of charges should move away from choosing the “most serious offense” to a “proportional” response – citing a 1994 Attorney General Reno Memo – that ultimately yields a punishment sufficient but not greater than necessary, in line with 18 U.S.C. § 3553(a).
• Mandatory minimum offenses: Prosecutors are cautioned that although mandatory minimums may be appropriate in some cases, they carry disproportionate impact and therefore should be subject to prosecutorial and supervisory discretion. The memo also references a same-day separate memorandum providing additional policies specific to drug offenses, see Attorney General Memorandum - Additional Department Policies Regarding Charges Pleas and Sentencing in Drug Cases, where mandatory minimums often play a significant role.
• Review and documentation of charging decisions: All but the most routine indictments should be accompanied by a memorandum outlining charging options and the rationale for the charging decision and each US Attorney’s office must have written guidance describing its indictment and plea agreement review process. Supervisory approval is required for any charge or plea agreement that would impose a mandatory minimum sentence. The DOJ plans to develop software to track mandatory minimum charges across districts. The memo additionally suggests that circumstances may change resulting in appropriate pursuits of dismissed indictments.
• Plea agreements: Prosecutors should not file charges as leverage to induce a plea. Each district must promulgate written guidance regarding standard memos and waivers of any defendants’ rights.
• Sentencing recommendations: The memo guides prosecutors to consider the factors under § 3553(a), and reasons that in most cases, this will result in a sentence within the advisory Sentencing Guidelines range, but also reminds them to focus on proportionality, exercise discretion, and make recommendations for variances and departures as warranted.
• Training and application to pending cases: The memo instructs districts to provide training on the memo and applies to cases from January 15 on (and should be applied to pending cases already charged, but not to final judgments).

The Garland Memo supersedes the Interim Guidance on Prosecutorial Discretion issued by the Acting Attorney General at the start of the Biden Administration. That guidance rescinded the 2017 Sessions Memo – which oriented around charging the most serious readily provable offense – and temporarily reinstated the 2010 Holder Memo, which contained policies from the Obama Administration comparable to the Garland Memo.

A roadmap for more proportionate decisions

This is a significant shift in tone and reverses many years of guidance from top leadership at DOJ about being tough on crime and charging the maximum possible sentences. Of course, the reality is that such broad-brush statements do not mean that discretion will be exercised, or exercised appropriately, in any given case. These are not enforceable promises, and it has always been the case that federal prosecutors have broad discretion in most prosecutions.

That said, the Garland Memo offers defense counsel a roadmap for negotiating more proportionate charging and sentencing decisions. But, while the overall charging, pleading, and sentencing policies of the Garland Memo allow for more prosecutorial discretion and downward variances, it is unclear how the alleged leniency will play out in the white-collar context.

The prior two Administrations have shown that overall charging policies do not map perfectly onto their treatment of white-collar crime, and there is little reason to believe DOJ intends to retreat from its announced focus on these offenses. (See prior DLA Piper alerts on these topics: Deputy AG announces changes to DOJ corporate criminal enforcement policy; DOJ plans to make US sanctions enforcement “the new FCPA": watch these key areas; and Expectations for white collar enforcement under the Biden Administration.)

Even if that focus has not resulted in significantly increased prosecutions to date, the Garland Memo signals more of a return to overall crime policies than a retreat from a focus on white-collar crime.

Learn more about the implications of the Garland Memo by contacting any of the authors.