On December 16, 2022, the Attorney General of the United States issued a memorandum that provided guidance for federal prosecutors in drug cases.  While the memorandum has been well received for the Department of Justice’s effort towards eliminating the crack-to-powder cocaine sentencing disparities, it also sets forth standards that prosecutors are to consider in all drug cases implicating mandatory-minimum sentences based on drug type and quantity.

Under the new guidance, prosecutors are not to charge violations of federal drug laws that include mandatory minimums, if: (i) the defendant’s conduct did not involve violence, firearms, minors, or death or serious bodily injury to another; (ii) the defendant was not a leader or organizer in trafficking drugs; (iii) the defendant lacked “significant ties to a large-scale criminal organization or cartel, or . . . a violent gang”; and (iv) the defendant did not have a “significant” criminal history involving violence or “multiple” prior convictions that involved trafficking “significant quantities” of drugs.  But even individuals who do not satisfy each factor could avoid a drug charge that carries a draconian mandatory-minimum sentence.  Indeed, the memorandum provides that in “cases in which prosecutors determine that some but not all of the [factors] are satisfied, prosecutors should not automatically charge” a violation that “trigger[s] [a] mandatory minimum.”  Prosecutors, instead, are to “carefully determine” whether such a charge is still “appropriate.”  Thus, the guidance could benefit a wider class of defendants at the outset, when charging decisions are made. 

Of course, it will not always be clear whether a defendant satisfies all or some of the factors when a case is initiated.  Fortunately, if a prosecutor later learns information demonstrating that an individual satisfies all or some of the above factors, the guidance directs prosecutors to “pursue a disposition that does not require a . . . mandatory minimum sentence.”  Thus, upon acquiring relevant information, prosecutors “could ask the grand jury to supersede the indictment with” lesser charges, the “defendant could plead guilty to a lesser” charge, or the “defendant could waive indictment and plead guilty to an information that does not charge [a] quantity necessary to trigger [a] mandatory minimum.”

The guidance in the memorandum is certainly consistent with the DOJ’s focus on combatting violent crimes.  The hope is that, moving forward, fewer defendants (not just those charged with crimes involving crack cocaine) will be subject to the lengthy minimum sentences mandated by federal law.  What is more, although the memorandum does not establish enforceable rights, defendants who already have drug charges pending could also potentially benefit in resolving their cases.