The US Department of Justice (DOJ) recently issued a three-page memorandum from acting Deputy Attorney General Emil Bove to the entire DOJ workforce directing federal prosecutors to return to previous DOJ charging guidelines, which required Assistant US Attorneys to uphold their “core principle” to charge and pursue “the most serious, readily provable offenses,” defined in the memorandum as those with the highest mandatory minimum sentences and highest Sentencing Guidelines’ ranges. This directive is the latest in a series of administration-directed reversals in DOJ policy dating back to the Carter administration and seeks to realign DOJ policy with that of earlier Republican administrations as well as President Donald Trump’s recent executive actions concerning immigration. This newly announced return to prior DOJ guidelines will likely result in an increase in the number of mandatory minimum charges filed by the DOJ, particularly in narcotics cases, but will also impact all of the DOJ’s charging decisions across the full spectrum of federal crimes.
This new directive supplants the Biden administration’s DOJ policy, which encouraged prosecutors to make charging and sentencing decisions based on an “individualized assessment” of each case and with a focus on reducing sentencing disparities by reserving mandatory minimum charges for serious, high-level, or violent offenders.
Historically, individual prosecutors and their supervisors were given considerable discretion to decide which cases to pursue and which charges to seek, since as a practical matter, federal prosecutors have limited resources and cannot pursue every potential federal criminal violation. This new policy will have a significant impact on whether—and how—to charge federal crimes in cases involving corporations and individuals.
This DOJ shift in policy will limit the prosecutorial discretion previously allowed to individual prosecutors and represents a significant shift in how federal prosecutors will approach cases going forward. Recent Democratic administrations have generally taken a more expansive view of prosecutorial discretion, leaving room for individual prosecutors to exercise their judgment in charging decisions and seek sentences based on an “individualized assessment” of the defendant’s conduct. The George W. Bush administration had rescinded the “individualized assessment” directive, only for it to be reinstated by the Obama administration.
Additionally, the directive, known as the “Bove Memorandum,” redirects federal prosecution resources towards immigration enforcement and instructs US Attorneys to investigate and potentially prosecute state and local officials who resist or obstruct actions of immigration authorities. The memorandum states, “Federal law prohibits state and local actors from resisting, obstructing, and otherwise failing to comply with lawful immigration-related commands or requests.” Thus, the memorandum hints at the possibility that federal officials may bring charges against local officials for harboring immigrants without legal status or for failing to share information with immigration authorities. This policy comes in the wake of the newly established Sanctuary Cities Enforcement Working Group, whose purpose is to identify state and local policies or laws that are “inconsistent” with the Trump administration’s enforcement efforts, and “where appropriate, to take legal action to challenge such laws.”
US Attorney’s Offices will now also be required to report on a quarterly basis to the DOJ statistics relating to the volume of ongoing immigration-related cases and investigations, and to coordinate with federal courts to inform the courts of this interim policy (pending approval from the US Attorney General) and develop processes for handling the increased number of prosecutions that will result.
Key Takeaways
- Clients should consult outside counsel regarding the potential ramifications of the Bove Memorandum and how it may impact ongoing or future federal investigations.
- The directives set forth in the Bove Memorandum will have an immediate impact and will likely cause a ripple effect across criminal charging and sentencing decisions at all levels of the DOJ. The DOJ’s goal is to limit prosecutorial discretion and increase predictability and uniformity by directing prosecutors to pursue the most serious, readily provable offenses.
- Supporters applaud this new policy aimed at establishing a uniform charging and sentencing system founded on predictability, while critics argue the cost is the elimination of prosecutors’ discretion to assess cases on an individualized basis in deciding whether to forgo or vigorously pursue the most serious available charges.
- This new DOJ policy may place significant strain on DOJ resources due to the policy’s focus on charging the most serious provable offenses in every instance. The offenses implicated under this policy may (i) result in fewer plea deals; (ii) carry more severe, and perhaps unduly harsh, sentencing guidelines; and (iii) require a significant allocation of federal resources to prosecute a more serious offense compared to a lesser charge. The effectiveness of eliminating discretion to choose between a serious charge and a lesser charge is something that clients will want to watch closely in consultation with outside counsel.
- The Bove Memorandum, which will likely result in a significant increase in prosecuted federal cases, directs federal prosecutors to prepare for, and advise federal courts about, the anticipated increase in federal criminal cases.
- The interim policy sets forth a clear immigration-enforcement agenda that aligns with the Trump administration’s immigration-related initiatives, and will likely lead to a significant increase in immigration-related investigations and prosecutions.
The Government Investigations & White Collar Criminal Defense Practice Group at McCarter & English will continue to monitor the impact of these policy changes and will watch closely as to how the DOJ’s new charging guidelines and reallocation of resources may affect pending and future investigations.