Changing Guidelines for Federal Prosecutors Leads to Uncertainty

Recently, Attorney General Jeff Sessions issued a memorandum instructing US Attorneys to charge the “highest readily provable offense” regardless of other factors in all cases. This reverses an Obama-era policy that called for charging leaders and violent actors more severely than non-violent, non gang-related actors. The net result of these changes in policy is, from our perspective, medium-term uncertainty of results for our Federal clients.

For example, one interpretation of this memorandum could be that “851” enhancements (for prior drug felonies, including simple possession) which are currently used as bargaining tools in negotiating plea agreements, and which dramatically increase mandatory minimum sentences may start showing up in indictments. I do not believe that this will be happening at the local level (within the Middle District of Alabama) but there is always the possibility that a new US Attorney may view things differently.

The bottom line for people facing federal charges is that, in all likelihood, federal sentencing is about to get more severe and there will be fewer opportunities to negotiate for lower sentences as these new policies are interpreted and put into place by local federal prosecutors offices. Time will tell exactly how this plays out, but we plan to periodically update in this space when policies become more clear.