The Department of Justice’s New Criminal Charging Policies

Forthcoming, 38 Federal Sentencing Reporter __ (2025).

In the coming months, the Federal Sentencing Reporter (FSR) will be publishing an issue reflecting on President Biden’s record on sentencing and criminal justice over the last four years and also projecting on what President Trump’s second term will mean for both. This essay, written by former U.S. Attorney for the Eastern District of New York and now Senior Counsel at Covington & Burling LLP Alan Vinegrad and FSR Managing Editor Doug Berman, will be part of that issue.

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Introduction

Every Administration for the last 45 years has issued its own policy for the charging, plea bargaining, and sentencing of federal crimes. The current Trump Administration is no exception.

Wasting no time and moving more quickly than any prior Administration, on the day after the inauguration, Acting Deputy Attorney General Emil Bove issued an “interim” charging policy. The main thrust of the new policy is clear: it rescinds the policies of two predecessor Administrations (Presidents Obama and Biden) and revives the policy of President Trump’s first term, as reflected in the May 10, 2017, memo of then-Attorney General Jeff Sessions. The interim policy also sets forth three criminal justice priorities that the new policy is designed to achieve: prosecuting cartels and other transnational gangs; prosecuting immigration violations; and addressing the fentanyl crisis and opioid epidemic. Of the three, the policy devotes by far the most attention to the second: immigration.

Two weeks later – on the day after she was confirmed as Attorney General – Pam Bondi issued her own policy memorandum, which largely tracks the terms of the interim policy, delineates the Department of Justice’s plea bargaining and sentencing policies, and adds details on the Department of Justice’s prosecution priorities. Other charging and sentencing policies are contained in other memos issued by Attorney General Bondi on that same day.

History of DOJ Charging Policies

The issuance of DOJ charging policies can be traced back to 1980, when then-Attorney General Benjamin Civiletti issued the “Principles of Federal Prosecution,” setting forth basic principles to guide federal prosecutors in their prosecution of federal crimes. Over time, that policy has been supplemented or altered with further iterations by succeeding Attorneys General, including Richard Thornburg, Janet Reno, John Ashcroft, Eric Holder, Jeff Sessions and Merrick Garland (as well as various memoranda issued by some of their deputies). While the principles and language have varied considerably over the years, the overarching trend has been policies committed to more punitive enforcement by Republican Administrations, with policies providing greater discretion to pursue less punitiveness – particularly in many narcotics cases – by Democratic Administrations. In recent years, Attorneys General have not only issued their own policies but also explicitly rescinded those of their predecessors.

And so the criminal justice pendulum has swung, back and forth, for decades. The most recent example of this – and the one most pertinent as background to the newly-announced policies – is that of AG Sessions and AG Garland. AG Sessions’ policy memorandum, issued in 2017, reiterated a core DOJ charging principle – namely, that prosecutors should charge and pursue the most serious readily provable offense, defined as the one carrying the “most substantial” sentence under the U.S. Sentencing Guidelines (including mandatory minimum terms of imprisonment). The policy allowed for exceptions in cases where strict application was not warranted, if justified by unusual facts – and, in those cases, deviation from the policy required supervisory approval by a United States Attorney, an Assistant Attorney General, or their designee. It also provided that in most cases, it was appropriate for prosecutors to seek a sentence within the Sentencing Guidelines. As with charging decisions, supervisory approval was required for a prosecutor to recommend a departure or variance from the otherwise applicable guideline range, with the reasons documented in the case file. And the policy memo rescinded (to the extent inconsistent with it) the 2013 and 2014 charging policies of AG Sessions’ predecessor once removed, Attorney General Eric Holder, which focused on narcotics cases and particularly the use of “mandatory minimums for certain nonviolent, low-level drug offenders.”

AG Garland’s 2022 policy memo took a different approach. It reiterated the core principle of charging the most serious offense that is likely to result in a conviction – but then recognized that since that principle was initially articulated (in 1980), punishment of federal crimes had become harsher due to the proliferation of crimes with mandatory minimums and the advent of the Guidelines. And thus, the memo cautioned prosecutors to consider whether charging the most serious offense would result in punishment that was proportional to the seriousness of the defendant’s conduct and achieve the basic purposes of sentencing – a standard lifted verbatim from the 1994 policy of then-Attorney General Janet Reno. It also reminded prosecutors that, in the end, the sanction for a federal crime should be one that is “sufficient, but not greater than necessary” – a plainly different standard than the “most substantial” sentence.

The Garland policy memo further ameliorated the potential harshness of mandatory minimum and guideline sentences. After stating that mandatory minimums have “often caused unwarranted disproportionality” and “disproportionately severe sentences,” it directed that such punishment should ordinarily be reserved for cases in which the remaining (non-mandatory minimum) charges would not sufficiently reflect the seriousness of the crime, community danger, and victim harm, among other factors. (As examples, it described defendants who have committed or threatened violent crimes or directed others to do so.) To drive the point home, the memo further provided that prosecutors should consider whether the remaining charges would “capture the gravamen” of the crime and community danger and yield “sufficient” punishment. And it required supervisory approval – and periodic reporting to Main Justice in Washington, D.C. – of any decision to bring a mandatory minimum charge.

As for the rest of sentencing policy, AG Garland’s policy (like AG Reno’s) stressed making sentencing recommendations based on an individualized assessment of the offense and the defendant. It provided that a sentence within the guideline range will be appropriate in many cases, but that prosecutors should consider whether a guideline departure is appropriate and stated that a prosecutor may conclude (based on an individualized assessment) that a departure or variance was warranted. And it required that such a sentence recommendation be supported by specific and articulable factors, documented in the case file, and approved by a supervisor.

And lest there by any doubt, AG Garland’s memo explicitly superseded all previous memoranda reflecting DOJ’s charging, plea, and sentencing policies (including that of AG Sessions).

The Interim Policy

It took one day for the new Administration to revoke AG Garland’s policy. In the absence of a confirmed successor to AG Garland, it fell to Acting Deputy Attorney General Emil Bove (one of President Trump’s lawyers in defense of several criminal prosecutions of him) to issue the DOJ’s new policy. In fact, the policy is not really “new”; it explicitly states that the DOJ’s interim policy is the policy set forth in AG Sessions’ 2017 memo. Consistent with that memo, prosecutors are directed to pursue the most serious readily provable offenses, unless there are significant extenuating circumstances justifying deviation from this standard.

While prosecuting cartels and other transnational gangs, and addressing the fentanyl crisis and opioid epidemic, are identified at the outset of the memo as Administration goals, the remainder of the memo focuses on the aggressive pursuit of immigration law violations. It provides that prosecutors shall pursue immigration charges when presented to them, that declinations must be promptly disclosed to Main Justice, and that data on referrals, cases, convictions, sentences, and removals must be reported quarterly to Main Justice. It directs the Organized Crime Drug Enforcement Task Force (OCDETF) and the Project Safe Neighborhoods program to provide resources and attention to this effort – and to prioritize these cases by requiring prosecutors funded by OCDETF to devote significant time and attention to them and by enhanced statistical tracking of these efforts. It directs several federal law enforcement agencies to review their files to identify non-citizens living illegally in the country, and to provide that data to the U.S. Department of Homeland Security (DHS) to facilitate removals, enforcement actions, investigations and prosecutions (absent a determination, concurred in by the U.S. Attorney’s Office, that disclosure to DHS would compromise a significant law enforcement investigation). And it directs the FBI’s Joint Terrorism Task Force to coordinate with DHS and state and local authorities to help execute the Administration’s immigration-related initiatives.

What’s more, the memo makes clear that resistance to these immigration directives will have consequences. It states that state and local actors who resist, obstruct, or otherwise fail to comply with immigration-related commands and requests shall be investigated for potential criminal prosecution (with declinations disclosed promptly to Main Justice). And it provides that DOJ’s Civil Division, together with the new Sanctuary Cities Enforcement Working Group, shall identify state and local laws, policies, and activities inconsistent with the Administration’s immigration initiatives and, where appropriate, take action to challenge these laws.

Attorney General Bondi’s Policies

On February 5, Attorney General Bondi issued 14 memoranda, setting forth a wide variety of DOJ policies. Among them were the DOJ’s “General Policy Regarding Charging, Plea Negotiations, and Sentencing” – the focus of the discussion below.

The charging policy largely tracks the interim policy – making clear that, absent unusual facts, prosecutors should charge and prove the most serious, readily provable offense. The memo defines the “most serious” offense as one punishable by death, with the most significant mandatory minimum, and with the most substantial guideline range. While the interim memo authorized deviations from this policy based on “significant extenuating circumstances,” the Attorney General’s policy stresses that deviations are allowed based on “unusual facts” – and, unlike the interim policy, explicitly reminds prosecutors that, consistent with pre-existing DOJ policy, charging decisions must be based on “an individualized assessment of all the facts and circumstances of each particular case.” And like AG Sessions’ 2017 policy, deviations from the new policy require supervisory approval.

Ms. Bondi’s policy also adds a section on “whether” federal charges are appropriate. Since it reiterates pre-existing DOJ policy – requiring prosecutors to consider if there is probable cause, whether prosecution would serve a substantial federal interest, and alternatives to prosecution – it appears that the main purpose of this part of the memo is to make clear that a prosecutive decision “may not be influenced” by the prosecutor’s “political association, activities or beliefs” or the “possible effect of the decision on the attorney’s own professional or personal circumstances.” Lest the political motivation of this pronouncement not be clear enough, the policy explicitly opines that such considerations “previously led to the improper weaponization of the criminal justice system at the federal and state levels” – and cites to President Donald Trump’s Executive Order 14147 on the same subject (“Ending the Weaponization of the Federal Government”).

The plea bargaining policy follows this theme – stating that “there is no room in plea bargaining for political animus or other hostility.” It goes on to instruct that prosecutors may not use criminal charges to exert leverage to induce a guilty plea, or abandon charges to secure a plea inconsistent with the seriousness of the defendant’s conduct. As one example, the policy provides that “absent significant mitigating or intervening circumstances” it will “rarely” be appropriate for a prosecutor to obtain but then drop racketeering or terrorism charges to secure a plea deal.

The memo also reiterates AG Sessions’ policy that, in “most cases,” recommending a sentence within the guideline range will be appropriate. Curiously, it provides no guidance on when a variance from this rule will be justified, or what level of supervisory approval is required. As with the charging policy, the sentencing policy states that recommendations must be based on an individualized assessment of the case – in particular, the nature and circumstances of the offense and the history and characteristics of the defendant (a standard that parallels the principal federal sentencing statute, 18 U.S.C. §3553(a)(1)).

Finally, AG Bondi’s memo reiterates and expands upon the prosecution priorities of the interim policy. Included within the DOJ’s investigative and charging priorities are immigration enforcement; human trafficking and smuggling; transnational organized crime, cartels and gangs (with a separate memo, discussed below, further delineating this prosecution priority); and protecting federal, state and local law enforcement personnel – going so far as to call for the death penalty for those who commit capital crimes against law enforcement. And in a further redirection of DOJ priorities, the memo disbands the Foreign Influence Task Force (formed to combat foreign influence in U.S. elections) and the National Security Division’s Corporate Enforcement Unit (formed to address corporate crime relating to the national security of the United States); directs the Bureau of Alcohol, Tobacco, Firearms and Explosives to shift resources away from its enforcement programs to the priorities set forth in the memo; and limits Foreign Agents Registration Act (FARA) charges to ones involving conduct “similar to more traditional espionage by foreign government actors” (and further provides that the DOJ’s FARA unit shall focus on civil enforcement, regulatory initiatives, and public guidance).

But that’s not all. Other memos issued by Ms. Bondi on February 5, 2025, provide further guidance on DOJ’s new charging and sentencing policies.

Antisemitism

One memo establishes a Joint Task Force October 7 (called “JTF 10-7”) to prosecute perpetrators of the October 7, 2023, terrorist attack in Israel by Hamas and its affiliates – including the already-filed case in the Southern District of New York against Hamas leadership; investigating and prosecuting terrorism, antisemitic civil rights violations, and other federal crimes committed by Hamas supporters in the United States, including on college campuses; investigating and prosecuting Hamas funders; and supporting Israel and the U.S. Departments of Defense and Treasury to pursue non-criminal responses to the October 7 attack and other Hamas terrorism. To facilitate these efforts, the memo directs the use of prosecutors and FBI agents with experience in these subjects; authorizes the easier use of subpoenas to foreign banks with U.S. correspondent accounts; and advocates for expanded venue options for prosecutions.

Death Penalty

Another memo is both a response to President Biden’s commutation of death sentences for 37 of the 40 federal defendants sentenced to death (and pending at the time of the commutations) as well as a broad commitment to pursue aggressively future death sentences. Of course, the Administration is powerless to rescind President Biden’s commutations, but the memo directs federal prosecutors to help local prosecutors to pursue death sentences against these defendants under state law, where appropriate and legally permissible and after consulting with victims’ families and others, and also directs the Bureau of Prisons (BOP) to confine these defendants “consistent with the security risks those inmates present because of their egregious crimes, criminal histories, and all other relevant considerations” – a seeming direction to house them in the harshest conditions possible.

Yet another memo “revive[s]” the federal death penalty, lifting the moratorium imposed by AG Garland in 2021. Following up on President Trump’s Executive Order 14164 (“Restoring the Death Penalty and Protecting Public Safety”), the memo states that prosecutors shall seek the death penalty for the most serious, readily provable crimes, consistent with statutes, regulations, and DOJ guidance. More specific guidance is provided for certain categories of offenses and offenders. Thus, the memo directs that, “[a]bsent significant mitigating circumstances,” prosecutors are expected to seek the death penalty in cases involving murder of a law enforcement officer or capital crimes committed by aliens illegally in the United States. As examples, it specifically names David Marland (a U.S. Customs and Border Patrol agent murdered in Vermont) and Debrina Kawam (who was burned to death on a New York City subway train). And it includes, as offenses warranting pursuit of the death penalty, murder-for-hire, murder in aid of racketeering, murder in furtherance of a continuing criminal (narcotics) enterprise, use of a firearm causing death in connection with a violent crime or narcotics offense, certain drive-by shootings, and certain offense involving extremely large quantities of narcotics.

In a further effort to undo the capital crimes policies of the last Administration, the memo directs the Attorney General’s Capital Review Committee to review all “no-seek decisions” (i.e., decisions not to seek the death penalty) in all pending cases charged during the Biden Administration. It calls for particular attention to be paid to cases involving cartels or transnational criminal organizations, persons present in the United States illegally, and capital crimes committed in Indian country or in federal maritime and territorial jurisdictions.

And in a final effort to ensure a broader use of the death penalty, the memo directs DOJ components to seek to “cabin or obtain reassessment of” Supreme Court cases limiting the government’s authority to impose capital punishment, and further directs the BOP to transfer federal prisoners with state or local death sentences to the appropriate authorities to carry out those sentences. Notably, the memo specifically references “child rapists” as potential capital defendants, and a handful of states have recently advanced legislation to authorize the death penalty for child rape despite the U.S. Supreme Court’s ruling in Kennedy v. Louisiana, 554 U.S. 407 (2008), that the Eighth Amendment precludes capital punishment for the crime of child rape. It seems likely that the Attorney General may be especially interested in seeking “reassessment” of the Kennedy ruling.

Sanctuary Cities

In yet another memo, entitled “Sanctuary Jurisdiction Directives,” the Attorney General – in addition to pronouncing a host of funding-related measures relating to jurisdictions that refuse to comply with federal laws requiring sharing of immigration-related information with federal immigration officers – reminds prosecutors that (as reflected in the interim policy) impeding, obstructing, or otherwise failing to comply with lawful immigration-related directives shall be investigated and, where supported by evidence, prosecuted. The memo further directs that declination decisions must be reported to DOJ leadership.

FCPA, Money Laundering, and Asset Forfeiture

A final shift in charging policy is embodied in the Attorney General’s memo on eliminating cartels and transnational criminal organizations (TCOs). In the midst of describing a panoply of measures designed to more aggressively prosecute these cases, the memo directs that the Criminal Division’s Foreign Corrupt Practices Act (FCPA) unit shall prioritize cases involving facilitation of criminal operations of cartels and TCOs and “shift focus away” from cases not involving such a connection. It also directs the Money Laundering and Asset Recovery Section to prioritize these same cases, and disbands several DOJ initiatives pertaining to kleptocracy (government officials who use their power to expropriate wealth for personal gain).

Via a subsequent executive order signed on February 10, President Trump directed Attorney General Bondi to pause new FCPA investigations and enforcement actions for 180 days in order to “review guidelines and policies governing investigations and enforcement actions under the FCPA.” That order made clear President Trump’s disaffinity for FCPA actions, lamenting that “overexpansive and unpredictable FCPA enforcement against American citizens and businesses — by our own Government — for routine business practices in other nations not only wastes limited prosecutorial resources that could be dedicated to preserving American freedoms, but actively harms American economic competitiveness and, therefore, national security.”

Conclusion

The above-described flurry of new DOJ policies reflect a general theme: a return to more aggressive pursuit of federal charges carrying harsher punishments. And this Administration’s main prosecution priorities are clear: going after cartels and gangs, crimes by those unlawfully in our country, and crimes involving law enforcement victims.

But what will the impact of these new policies be? To be sure, changes in DOJ’s charging and sentencing policies over the years have impacted how individuals caught up in the federal criminal justice system are treated. But U.S. Attorney’s Offices generally maintain discretion to pursue cases in a manner consistent with the size and particular characteristics of their individual jurisdictions. The number and type of federal prosecutions, as well as the rates of pleas and sentencing outcomes, have tended to be fairly consistent across time and distinct Administrations. Prosecutorial trends have certainly emerged and evolved over time, but often relatively slowly because of the relative stability of institutional practices and memories of Justice Department prosecutors. That said, the number of federal criminal immigration prosecutions has varied significantly in recent years, and the Trump Administration’s emphasis on immigration enforcement certainly suggests we should expect a spike in this segment of the federal criminal caseload.

Actual implementation of AG Bondi’s new policies will determine just how far the pendulum has swung this time around. But, in an explicit warning shot to federal prosecutors, the Attorney General – in a memo entitled “General Policy Regarding Zealous Advocacy On Behalf Of The United States” – makes clear that their job includes “aggressively enforcing criminal and civil laws enacted by Congress” and “vigorously defending presidential policies and actions against legal challenges” – with no room for their own personal political views or judgments. And it further warns that a prosecutor who declines to sign a brief or appear in court, or refuses to advance good-faith arguments on the Administration’s behalf, or otherwise delays or impedes the DOJ’s mission, is subject to discipline – potentially including termination. This memo certainly signals a commitment to the swift and vigorous implementation of the Administration’s law enforcement policies and priorities – which was highlighted in the early controversy surrounding the federal prosecution of New York City Mayor Eric Adams and the resignations of seven DOJ prosecutors in the wake of the Administration’s directive to seek its dismissal.

Plainly, there’s a new sheriff in town. Will that result in a country that is safer, and fairer, and more just? Time will tell. Stay tuned.

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Douglas A. Berman is Newton D. Baker-Baker & Hostetler Chair in Law at The Ohio State University Moritz College of Law. Alan Vinegrad is a former United States Attorney for the Eastern District of New York, now at Covington & Burling LLP.