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Will the DOJ push prosecutors toward the harshest possible sentences?

The Associated Press has obtained information about an upcoming policy guidance memo that would urge prosecutors to file the most serious charges they believe they can prove in court. This would be a reversal of the Obama Justice Department's guidance that low-level offenders should not be sentenced to long-term incarceration.

In cases without a grand jury, U.S. Attorneys, who prosecute federal crimes on behalf of the Department of Justice, have traditionally had the discretion to choose the appropriate charges from among those that could be proved. This is important not only so that they base criminal cases on justice and proportionality, but also because there is strategy involved in choosing what charges to file.

For example, when attempting to negotiate a plea bargain, prosecutors often threaten to file a terrifying array of multiple charges with stacked, mandatory-minimum sentences. This is intended to pressure defendants into pleading guilty to lesser offenses.

When prosecutors expect a trial, on the other hand, they might choose to file a lower-level charge they know they can prove, as opposed filing to the most serious possible charge and taking a risk. Judges and juries may find the top-level charge wasn't fully proved, or might decide it isn't proportional to the actual events.

In grand jury cases, it is ultimately the grand jury that determines what charges to issue indictments for. However, prosecutors choose which charges to present to the grand juries.

What will the new guidance from the Department of Justice recommend?

We don't know yet. Someone involved in the ongoing discussions told the AP, on condition of anonymity, that the Justice Department is working on the policy guidance memo right now. More than one draft has circulated for weeks, constantly being revised and updated. Even the timeframe for its release is unclear.

That said, what has been circulated directs all federal prosecutors to file the most serious charges they can prove, even though doing so is likely to trigger harsh mandatory minimum sentences, especially in drug cases.

It's not clear whether that means all federal cases or only drug cases. In February, then-Senator Jeff Sessions said he planned to double-down on the War on Drugs, despite the mass incarceration crisis and the apparent injustice of mandatory minimum sentences.

Do you think the Attorney General should direct federal prosecutors to file the harshest possible charges? Or should they retain their traditional discretion on charging decisions?

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