What Ever Happened to Attorney General Garland’s Charging and Sentencing Policy?
Back in the summer, in a courtroom in Islip, New York, out on Long Island, former Congressman George Santos pleaded guilty to two counts of a superseding indictment charging him with wire fraud and aggravated identity theft. You remember George Santos. He was the best comic relief of the 118th Congress and the MAGA movement. Unlike some of the other characters of the movement – including its leader – who can also be quite funny, Santos seemed undangerous, not a threat either to cherished national institutions or to seek vengeance against everyone who disagreed with him. He just wanted to be famous and respected. Who can’t relate to that? And it all made the humor purer and far more enjoyable; no terror along with your punchline. And after being caught, his delivery recognized that we – him and us – were all in on the joke together.
The Justice Department, however, saw Santos differently. He was dangerous, or at least someone who needed to be held accountable for his misdeeds. It wasn’t enough that his congressional colleagues, Republicans and Democrats, threw him out of the House of Representatives. The Department can’t be in on the joke. I get it.
Here’s what U.S. Attorney for the Eastern District of New York Breon Peace had to say on the day Santos pleaded guilty –
Today, for what may seem like the first time since he started his campaign for Congress, Mr. Santos told the truth about his criminal schemes. He admitted to lying, stealing and conning people. By pleading guilty, Mr. Santos has acknowledged that he repeatedly defrauded federal and state government institutions as well as his own family, supporters, and constituents. His flagrant and disgraceful conduct has been exposed and will be punished. Mr. Santos’s conviction demonstrates this Office’s enduring commitment to rooting out corruption and grift by public officials.
I find the term “rooting out” funny. Santos’ corruption was mostly out in the open, right there for all to see. I suspect rooting it out took a Google search and maybe a subpoena or two.
FBI Acting Assistant Director in Charge Christie Curtis added this –
George Santos admitted that he did in fact lie, cheat, and steal his way to elected office. When public officials place their self-interests above those they swore an oath to serve, it undermines confidence in our system of government and damages the very foundation of our democracy.
Call me cynical. While George Santos is certainly an outsized liar and cheater, don’t nearly all public officials place their self-interests above – or at least on par with – those they swore an oath to serve (like, just to take a couple of examples, pardoning your son; or your in-law; or the donors to your political campaigns)? Isn’t that why officials are always talking about the political implications of this policy or that? Isn’t it why the White House has a “Political Director?”
Nonetheless, like most others, I was enjoying the spectacle of the Santos guilty plea and the self-righteous, self-congratulatory musings of my former colleagues – it was a good show – until I saw this:
This headline wiped the big grin off my face. The fact that the U.S. Attorney insisted on Santos pleading guilty to a charge carrying a mandatory minimum imprisonment sentence – and that he proudly proclaimed it publicly – was a bit puzzling, to me anyway. You see at the beginning of the Biden Administration, my job in the bureaucracy was to lead a Department working group that examined a whole host of sentencing and corrections policies and recommended changes to many of those policies for the new Administration. The use of acquitted conduct at sentencing. The categorical approach to determining whether a crime was a violent one. Federal cocaine sentencing policy. The implementation of the FIRST STEP Act. Second look sentencing.
As part of that work, the working group teed up for Attorney General Merrick Garland a new charging policy, actually several different drafts. And after many months of deliberation, in December 2022, Attorney General Garland issued a new policy. If you are not familiar with it, you can read it for yourself here. Out in the open for all to see. It told federal prosecutors not to charge statutes carrying mandatory minimum imprisonment terms except in limited circumstances.
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Ever since the Sentencing Reform Act became law, attorneys general have been issuing charging and sentencing policies like Garland’s. This is because the Act gave prosecutors new power to influence federal sentences they had not had before. Charging mandatory minimums is only part of it. Pursuing or not pursuing sentencing guideline enhancements is another part. Offering plea bargains to lesser included offenses is another. And every Attorney General since Dick Thornburgh in the 1980s has recognized the importance of consistent application of these powers to ensure, as Aristotle implored of us years ago, that like cases be treated alike and that unalike cases be treated differently.
Over the past 40 years, each time a president of a different political party from the last was elected, the Justice Department would go through a policy ritual. The Department would cleanse the Justice Manual of the previous administration’s charging and sentencing policy, and it would issue and enshrine a new one. We’re about to go through it again. Republican administrations would stress the need to charge “the most serious, readily provable offense,” including those carrying mandatory minimum sentences. And Democratic administrations would stress the need for “individualized assessment of the extent to which particular charges fit the circumstances of the case.”
Some of this ritual is about the severity of sentences imposed in federal courts. Democratic administrations have generally been a bit more concerned with ensuring that federal sentences were “not greater than necessary,” and Republican administrations a bit more concerned with sentences being “sufficient.” But it’s also about the degree to which the Attorney General wants to exert centralized control.
The arc of the Democratic charging memos issued by Attorneys General Janet Reno, Eric Holder, and Merrick Garland bent incrementally – but undoubtedly further and further – away from charging the most serious, readily provable offense. Each went a bit beyond the one issued before and each became a bit more prescriptive.
The Holder and Garland memos each addressed the charging of statutes that include mandatory minimum imprisonment terms. The Holder memo on mandatory minimums came in the second Obama Administration – as part of Holder’s Smart on Crime initiative – and it only addressed charging of drug crimes. It included this –
[P]rosecutors should decline to charge the quantity necessary to trigger a mandatory minimum sentence if the defendant meets each of the following criteria:
· The defendant's relevant conduct does not involve the use of violence, the credible threat of violence, the possession of a weapon, the trafficking of drugs to or with minors, or the death or serious bodily injury of any person;
· The defendant is not an organizer, leader, manager or supervisor of others within a criminal organization;
· The defendant does not have significant ties to large-scale drug trafficking organizations, gangs, or cartels; and
· The defendant does not have a significant criminal history. A significant criminal history will normally be evidenced by three or more criminal history points but may involve fewer or greater depending on the nature of any prior convictions.
According to data from the Sentencing Commission, the policy led to some modest reduction in the use of mandatory minimums in drug cases. Of course, when President Trump was first elected in 2016, his Attorney General, Jeff Sessions, soon after he took office and per the attendant ritual, rescinded the Holder charging policies. And then, in January 2021, immediately after the Biden Administration took office, Acting Attorney General Monty Wilkinson rescinded the Sessions’ memo and reinstated some of the Holder policies as an interim step until the new Attorney General was confirmed by the Senate. Almost two years later, in 2022, Attorney General Garland finally issued his policy that took Holder’s to another level.
In his policy memo, Garland quoted from a Judicial Conference statement to the House Judiciary Committee that opposed all mandatory minimums and called for all to be repealed. He set out a new default policy – one that was more prescriptive than the last – of not charging statutes carrying a mandatory minimum unless the remaining charges did not “capture the gravamen of the defendant’s conduct” and yield a possible “sufficient” sanction. Here is the Garland memo’s operative language on the use of mandatory minimums –
The proliferation of provisions carrying mandatory minimum sentences has often caused unwarranted disproportionality in sentencing and disproportionately severe sentences. See Statement of the Judicial Conference of the United States before the House Judiciary Committee 5, 10 (July 11, 2014). For this reason, charges that subject a defendant to a mandatory minimum sentence should ordinarily be reserved for instances in which the remaining charges (i.e., those for which the elements are also satisfied by the defendant’s conduct, and do not carry mandatory minimum terms of imprisonment) would not sufficiently reflect the seriousness of the defendant’s criminal conduct, danger to the community, harm to victims, or other considerations outlined above. Prosecutors, in the exercise of their discretion and through discussions with their supervisors, should determine whether the remaining charges would, in fact, capture the gravamen of the defendant’s conduct and danger to the community and yield a sanction “sufficient” to satisfy the considerations outlined above.
The point of the policy, I thought, was as the Judicial Conference said in its testimony, generally to leave sentencing to the discretion of judges nudged along by the sentencing guidelines. “For 60 years, the Judicial Conference has consistently and vigorously opposed mandatory minimum sentences. Mandatory minimums are incompatible with guideline sentencing . . . In the absence of mandatory minimums, judges would not have unfettered discretion in sentencing. The sentencing guidelines that have been carefully developed with the benefit of the Sentencing Commission’s congressionally endorsed expertise would remain fully in force. Departures or variances from the guidelines would be reviewable on appeal for reasonableness.”
This is why I was perplexed when I read about the Santos case. The government alleged – and Santos admitted – that he “lied, cheated, and stole his way to elected office.” This is the “gravamen” of Santos’ conduct. The superseding indictment charged Santos with 23 counts. They include conspiracy and fraud charges, making false statements and unlawful money transactions, aggravated identity theft, and lots more. Here is the indictment.
From Count 1:
In or about and between December 2021 and November 2022 . . . the defendant GEORGE ANTHONY DEVOLDER SANTOS, together with others, did knowingly and intentionally conspire to knowingly and intentionally devise a scheme and artifice to defraud and to obtain money and property by means of one or more materially false and fraudulent pretenses, representations and promises, in violation of Title 18, United States Code, Section 1343 . . .
Lying. Cheating. Stealing.
Only the aggravated identity theft counts carry a mandatory minimum imprisonment sentence – of two years imprisonment each. Those counts spell out the means by which Santos and his co-conspirators committed the fraud set out in the other counts.
The Department itself recognized that the seriousness of Santos’ conduct – the gravamen – can be summed up this way: he “lied, cheated, and stole his way to elected office.” And any fair reading of the superseding indictment leads to the conclusion that setting aside the aggravated identity theft counts, the remaining counts reflect the fact that Santos “lied, cheated, and stole his way to elected office.” This was not a violent crime or a case of someone directing others to commit a violent crime. It was lying, cheating, stealing. The identity theft was incidental to the lying, cheating, and stealing, for sure. But it was not the gravamen of the crime.
The Garland policy exceptions permitting the charging of mandatory minimums is repeated in the memo. “In some cases, our duty to ensure that the laws are faithfully executed will require that prosecutors charge offenses that impose a mandatory minimum sentence, particularly where other charges do not sufficiently reflect the seriousness of the defendant’s conduct, the danger the defendant poses to the community, or other important federal interests. This may well be the case, for example, for defendants who have committed or threatened violent crime, or who have directed others to do so.”
Of course, we know why the U.S. Attorney charged the aggravated identity theft counts, and we know why he insisted that one of those counts be part of the plea agreement. The U.S. Attorney stood up at a podium and told us why. He wanted to be certain that George Santos would spend at least two years in prison. He wanted to take some sentencing options out of the hands of the presiding judge.
No matter what the federal Sentencing Guidelines recommend for a prison term, under the governing Supreme Court case law – Booker v. United States – judges are free to sentence to any reasonable sentence, unless of course there is a mandatory minimum charged. And sometimes, judges and their sentencing decisions will disappoint the litigants. The message of the Garland memo to all federal prosecutors was that while prosecutors are participants in the sentencing process, judges should be the decisionmakers and as a result, charges should be chosen consistent with that policy. Sometimes litigants will be disappointed by the judge’s decision. That’s the point. The U.S. Attorney’s charging and plea decisions in the Santos case do not seem consistent with the policy and do not seem to want to accept the possibility of disappointment.
The Santos case doesn’t seem to be a one-off either. The Sentencing Commission recently reported data on the use of charges carrying mandatory minimum imprisonment terms. That data show that 26.6% of all defendants sentenced in FY 2023, the latest year of available data and the first year under the Garland policy, were subject to a mandatory minimum penalty. That was slightly lower than the percentage in FY 2022 and about the same as the average percentage of defendants subject to a mandatory minimum over the last five years. The Commission has also reported that in Fiscal Year 2023, 62.1% of persons charged with drug crimes were charged with at least one count carrying a mandatory minimum imprisonment term. By comparison, in Fiscal Year 2022, 64.7% of all persons charged with drug crime were charged with at least one count carrying a mandatory minimum imprisonment term. The Garland policy doesn’t seem to have had much, if any, effect on the charging of mandatory minimums. What happened?
Of course, now, with the election of President Trump and the soon-to-be-nomination of Matt Gaetz Pam Bondi to be Attorney General, the policy ritual is sure to begin again. Maybe seeing his friend and sex party companion charged with child sex trafficking, a charge carrying a mandatory minimum term of imprisonment, will lead Gaetz to think twice before reinstating the Sessions’ memo. Notably, back in 2018, the year President Trump signed the First Step Act into law, Bondi led a bipartisan group of 38 state attorneys general supporting criminal justice reform in the federal prison system. So maybe she’ll think twice before reinstating the Sessions’ memo. We’ll see. And maybe Trump will pardon George Santos. I hear there’s still an opening for several Assistant Attorneys General.
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One last point – the Garland memo also made a promise –
The Department will develop and implement a software program that enables real-time, trackable reporting by districts and litigating divisions of all charges brought by the Department that include mandatory minimum sentences. Until that time, each United States Attorney’s Office and litigating division must report semi-annually to the Executive Office for United States Attorneys the number and percentage of charging documents and plea agreements in which it has included mandatory minimum charges.
The memo has been in place for about two years now. I don’t recall seeing any data from the Department on the implementation of the new policy. Have you? Did the Department ever develop and implement a software program that enables real-time, trackable reporting by districts and litigating divisions of all charges brought by the Department that include mandatory minimum sentences? Did it ever ask each United States Attorney’s Office and litigating division to report semi-annually to the Executive Office for United States Attorneys the number and percentage of charging documents and plea agreements in which it has included mandatory minimum charges?