New Federal Memo Rolls Back Obama-Era Protections for Nonviolent Drug Offenders



On Wednesday May 10, 2017, Attorney General Jefferson Sessions issued a memorandum to federal prosecutors outlining the Department of Justice’s new policy for charging and sentencing crimes. In the memo, which was made public on Friday, May 12, Sessions says that “prosecutors should charge and pursue the most serious, readily provable offense” including mandatory minimum offenses. Any deviation from this policy requires approval from a United States Attorney or Assistant Attorney General, or a supervisor designated by a US Attorney or Assistant Attorney General, and the reasons for deviating from the new policy must be documented and kept on file.

Additionally, the memo requires that prosecutors disclose to the sentencing court all factors impacting the sentencing guidelines or mandatory minimum sentences, and advisory approval is required for sentences that depart from the range set forth in the federal sentencing guidelines. Deviations from the core principles of the new policy must be “justified by unusual facts.”

The memo states that any inconsistent prior DOJ policy memo is rescinded, effective immediately. The Deputy Attorney General is tasked with issuing clarifications and guidelines on the new policy. In a footnote, the new memo states that two prior DOJ memos which are explicitly overruled include, but are presumably not limited to, the Department Policy on Charging Mandatory Minimum Sentences and Recidivist Enhancements in Certain Drug Cases (August 12, 2013); and Guidance Regarding § 851 Enhancements in Plea Negotiations (September 24, 2014).

This is very concerning to the cannabis industry , because during the Obama administration, the DOJ had largely taken a hands-off approach to marijuana enforcement provided that the eight priorities set forth in the Cole memorandum were followed, and also took a new approach on charging and sentencing nonviolent drug offenders whereby mandatory minimum sentences were recommended only to be brought against the most serious offenders. Now that these policies are no longer in place, low-level drug offenders (including marijuana offenders) are at risk of severe federal penalties.

Former Attorney General Eric Holder, who authored some of the earlier DOJ policy memos which are affected, made a statement opposing Jeff Sessions’ new policy. “The policy announced today is not tough on crime. It is dumb on crime. It is an ideologically motivated, cookie-cutter approach that has only been proven to generate unfairly long sentences that are often applied indiscriminately and do little to achieve long-term public safety…These reversals will be both substantively and financially ruinous, setting the Department back on a track to again spending one-third of its budget incarcerating people, rather than preventing, detecting, or investigating crime. ”

Read the full text of the new memo on DOJ Charging and Sentencing Policy here.

We will be monitoring this story as it develops.

If you need legal advice about federal law and policy, or representation in federal court, please contact the Law Offices of Omar Figueroa at 415-489-0420 or at 707-829-0215.