More Justice from Justice: The DOJ’s Latest Charging, Plea, and Sentencing Policies

United States Attorney General Merrick Garland issued new Department of Justice guidance for charging, plea, and sentencing policies via two memos: one providing general policies for all criminal cases and a second providing additional policies for drug cases. These latest DOJ policies are generally consistent in many respects with past policies issued by Attorney General Garland’s predecessors, but they break new ground (or revive previously rescinded policies) in several areas: mandatory minimum statutes, statutory sentencing enhancements, the crack/cocaine sentencing disparity, and pretrial diversion. All of these new policies tack in the same direction: ameliorating the harshness of the modern-era federal sentencing regime. Most notably, Attorney General Garland’s Drug Memo seeks to all but do away with the disparity by calling for federal prosecutors to “promote the equivalent treatment of crack and powder cocaine offenses.” The Drug Memo directs prosecutors to charge crack offenses as if they were cocaine offenses by using the quantity for cocaine rather than crack.