US Justice Department issues “Interim Policy Changes Regarding Charging, Sentencing, And Immigration Enforcement”

Reported today in Politico and the Washington Post and other outlets is this notable new memo (dated January 21, 2025) from the Department of Justice titled “Interim Policy Changes Regarding Charging, Sentencing, And Immigration Enforcement.”  The press pieces highlight the extentive discussion of immigration enforcement in this three-page memo, but sentencing fans will seurely be interested in the memo’s first section:

I. Core Principle: Pursuing The Most Serious, Readily Provable Offense

Interim changes to the Justice Department’s policy regarding charging and sentencing arenecessary in order to implement policies articulated in President Trump’s January 20, 2025 Executive Orders relating to the elimination of Cartels and other Transnational Criminal Organizations, and securing our borders against illegal immigration and drug trafficking.  Therefore, effective today, the Justice Department’s interim policy regarding charging and sentencing is set forth in the May 10, 2017 Memorandum entitled, “Department Charging andSentencing Policy,” which applies to all charging decisions at the Department of Justice and theUS. Attomey’s Offices. Any inconsistent previous policy of the Department of Justice relatingto charging and sentencing policy is rescinded, effective today.

Specifically, in the absence of unusual facts, prosecutorial discretion at the Department ofJustice and the U.S. Attorneys Offices is bounded by the core principle that prosecutors should charge and pursue the most serious, readily provable offenses.  The most serious offenses are: those punishable by death where applicable, and offenses with the most significant mandatory‘minimum sentences (including under the Armed Career Criminal Act and 21 U.S.C. § 851) and the most substantial recommendation under the Sentencing Guidelines.

Each United States Attorney and Assistant Attomey General is responsible for ensuring that this interim policy is implemented and followed.  Any deviations from the interim policy’s core principle require significant extenuating circumstances, shall be carefully considered, and‘must be approved consistent with the process described in the May 10, 2017 Memorandum.

Folks who follow DOJ charging policies though the years know that this guidence returns to the DOJ norms in all recent Republican administrations.  During the Obama and Biden Administration, these policies formally afforded federal prosecutors more discretion in various ways, though in charging and sentencing practices often are influenced by local US Attorney Offices and local realities within the shadow of the general guidance provided by Main Justice.