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“The Most Serious, Readily Provable Offense” and You: A User’s Guide to Presenting a Federal Defense in Changing Times

federal-criminal-defense-policiesWhatever your politics, it is beyond dispute that the current administration in Washington is looking to be less lenient than the last. One of the most recent examples is Attorney General Jeff Sessions’s two-page memorandum that instructs federal prosecutors to “charge and pursue the most serious, readily provable offense” in every case. Prosecutors who wish to charge less than the most serious, readily provable offense will need to get the okay from their bosses—if not the bosses’ bosses.

Something of a Sea Change

While this policy may not seem all that earth-shattering—after all, why wouldn’t a prosecutor go after the most serious offense that he or she can prove?—this marks a pretty big change from the Department of Justice’s policies under the previous administration. For instance, former AG Eric Holder essentially instructed his prosecutors not to charge the average nonviolent pot smoker. Under the DOJ’s new policy, there are no such guarantees.

This can have a massive impact on the lives of the criminally accused. For instance, a caregiver exercising his right to grow 12 marijuana plants for each of his five patients under the Michigan Medical Marihuana Act necessarily violates federal law by exercising those rights. Suppose his tenant and roommate is also a primary caregiver, and she is also growing 60 plants for her five patients. If the FBI searches his house and seizes 120 plants, a U.S. Attorney will have evidence aplenty to convict the first caregiver of a felony that carries a mandatory minimum sentence of five years. That means when the conviction comes in, the caregiver can do no less than five years in federal prison. A few months ago, this person would never have even been arrested.

What Now?

Well, we aren’t quite sure how this will play out. We are criminal defense attorneys, and we don’t know all the details of the DOJ’s inner workings. Like any governmental agency, the DOJ has certain budget and resource limitations. So, despite the sweeping language of the Attorney General’s memo, we think it is unlikely that the federal government will get involved in every criminal case nationwide.

But this probably does mean that more Michiganders will face dual prosecutions—that is, both the State and the United States will seek convictions at the same time in more instances. It also means that there is a higher risk of harsher punishments in certain kinds of cases.

One example is in the area of child pornography. Tragically, the possession and dissemination of child pornography is a lot more common than the average citizen might think. By its nature, this material is exploitative and repulsive. But as with any crime, there are degrees of heinousness. On one end of the spectrum are 18-year-old boys who receive and screenshot revealing Snapchats from their 17-year-old girlfriends. On the other end of the spectrum are the real predators.

Under previous policy, the federal government would try to separate the real predators from those who would never intentionally hurt a child. The feds would go after the former and leave the latter to the states to prosecute. But under the most-serious-readily-provable-offense standard, the nonpredators might now face federal charges instead of, or in addition to, state charges. And the disparity in punishment can be substantial.

For instance, in Michigan, possession of a single jpeg of child pornography can result in a maximum of four years in state prison. If the feds come after you for that same jpeg, you are looking at a mandatory minimum of five years, and possibly up to 20.

The Importance of a Criminal Defense Attorney

Perhaps now more than ever, it is incredibly important that you promptly retain a criminal defense attorney when you are facing charges, especially if those charges come from the federal government. Good criminal defense attorneys, like ours, can make it so that the “most serious” offenses are quite a bit less “readily provable.”

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