Traditionally, prosecutors have had the authority to determine which among the various possible criminal charges to file in a given situation. They can also choose not to file any charges at all, even when there is a provable case. This concept is called prosecutorial discretion.
That said, U.S. Attorneys and their staffs of federal prosecutors serve at the pleasure of the Attorney General, who directs the overall policy direction taken by anyone representing the Department of Justice.
During the Obama Administration, for example, Attorney General Eric Holder urged federal prosecutors to avoid taking on low-level marijuana crimes, especially in states that had legalized marijuana for medical or recreational purposes. Marijuana possession cases, he reasoned, are better handled by state and local officials. He was also responding to the sense that non-violent drug offenders are clogging our prisons due to unduly harsh mandatory minimum sentences.
That policy direction appears to be on its way to reversal. Officials told the Associated Press this week that a new policy guidance memorandum has been circulating in the Justice Department for weeks. This one looks to order federal prosecutors to err on the side of cracking down on criminal defendants. According to the AP’s source, the memo directs prosecutors to file the most serious available charges they can prove in court.
Does the new memorandum mean medical marijuana users will be federally prosecuted?
It’s unclear what the memo might do. There are apparently several versions being circulated and commented upon, and there is not even a timeline for releasing the new guidance. All we know is that it seems to reverse the Obama-era policy of minimizing prosecutions for low-level offenders. Instead, the policy direction appears to be to take advantage of stacked sentences and mandatory minimums to ensure defendants are put behind bars for a long, long time.
The Obama Administration policy was to avoid prosecution of medical marijuana users in states where it has been made legal. Although there is no information yet that this policy has been reversed, it may well be. If he became Attorney General, said then-Senator Jeff Sessions, he planned to double down on the Drug War even if it means continuing mass incarceration.