DOJ to Prosecutors: Think Twice and Ask Permission Before Charging

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Last week, Attorney General Merrick Garland issued a new DOJ charging and sentencing policy memorandum, replacing existing guidance to federal prosecutors in their exercise of prosecutorial discretion. The thrust of the extraordinary new policy is that prosecutors are no longer expected to charge the highest most readily provable offense, but rather to consider potential punishments and to exercise discretion to reduce defendants’ sentencing exposure. It appears to be a policy of leniency intended to mitigate the increasing number of mandatory minimum sentences that Congress promulgated over recent decades in a number of areas.