Advocates Seek Public Records from DOJ on Implementation of Directives Changing Mandatory Minimum Charging and Sentencing Policies

WASHINGTON — The American Civil Liberties Union, the National Association of Criminal Defense Lawyers, and the Federal Public & Community Defenders submitted a Freedom of Information Act (FOIA) request today seeking public records detailing the Department of Justice’s implementation of December 2022 memoranda establishing new policies for all federal prosecutors’ charging and sentencing practices.

On Dec. 16, 2022, Attorney General Merrick Garland issued two memoranda requiring federal prosecutors to make important changes in how they litigate criminal cases. These changes include charging crack cocaine offenses like powder cocaine offenses in order to avoid unwarranted and racially disparate sentencing outcomes; and reserving charges that carry a mandatory minimum sentence for cases in which the other charges (i.e., those for which the elements are also satisfied by the accused person’s conduct, and do not carry mandatory minimum terms of imprisonment) would not sufficiently reflect the seriousness of the person’s alleged criminal conduct, danger to the community, or harm to victims.

The new policies have been in effect for over one year, but the Federal Public & Community Defenders have received information from attorneys in multiple federal court districts indicating that federal prosecutors are not uniformly abiding by the two memoranda.

“Mandatory minimums have failed to improve public safety, contribute to the festering crisis of mass incarceration, and lead to unjust racial disparities in sentencing,” said Emma Andersson, deputy director of the ACLU’s Criminal Law Reform Project. “The policies in Attorney General Garland’s memoranda are positive reforms that could ameliorate the harms of federal mandatory minimum sentences, but only if they are fully and consistently implemented. We want to know whether the Justice Department is following through on its promises.”

“Every day in federal cases throughout the country, defendants face the dilemma of whether to accept a plea agreement or instead assert their 6th Amendment right to trial and risk a lengthier mandatory minimum sentence,” said Kyle O’Dowd, deputy director of the National Association of Criminal Defense Lawyers (NACDL). “The Memoranda acknowledge that charges intended to exert pressure on defendants to plead guilty are not in the public interest and prohibit prosecutors from filing charges on that basis. In deciding whether and how to address coercive plea tactics and other issues surrounding mandatory minimums, policymakers and the public must know whether the Justice Department is faithfully adhering to its own policies.”

“The Attorney General’s memoranda recognize some of the harm caused by mandatory minimums and steps that should be taken immediately to lessen those harms,” said Max Wolson, National Sentencing Resource Counsel of the Federal Public & Community Defenders (FPD). “But the policies are mere window dressing unless their spirit and letter are actually being followed on the ground.”

The ACLU, NACDL, and FPD seek wide ranging information on implementation of the memoranda, including:

• Data collected in software developed by the Justice Department to track charges brought by the DOJ that include mandatory minimum sentences, and related policy directives and training materials;
• Information related to compliance with the memoranda, including the percentage of charging documents and plea agreements that include charges with mandatory minimum sentences; and
• Further guidance the Justice Department has issued to ensure federal prosecutors seek equal treatment for crack and powder cocaine offenses through their charging and sentencing practices.

The FOIA request highlights the impact, if properly implemented, of the memoranda’s requirement that federal prosecutors exercise greater restraint in using mandatory minimums. “Reducing the use of mandatory minimums can also ameliorate racial disparities in the sentence lengths between similarly situated Black and white federal defendants. Research has shown that ‘[t]he initial mandatory minimum charging decision alone is capable of explaining more than half of the black-white sentence disparities not otherwise explained by pre-charge characteristics,’” the request reads.