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 such purposes of the criminal law as punishment, protection of the public, specific and general deterrence, and rehabilitation. 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. 18 U.S.C. § 3553(a) (mandating sentences that are “sufficient but not greater than necessary”).

In some cases, the Department’s 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 crimes, or who have directed others to do so. For example, a defendant who commits a federal crime of violence, such as a Hobbs Act robbery or hate crime, or a federal drug-trafficking crime, and who also uses or carries a firearm in furtherance of that crime, may appropriately be charged under 18 U.S.C. § 924(c) even if the prosecutor could potentially proceed by charging the substantive offense alone and seek a firearm enhancement at sentencing, if the latter would not sufficiently account for the defendant’s conduct or danger to the community.

As a general matter, the decision whether to seek a statutory sentencing enhancement should be guided by these same principles.

Department policy requires that prosecutors always be candid with the court, the probation office, and the public as to the full extent of the defendant’s conduct and culpability, regardless of whether the charging document includes such specificity.

Any decision to include a mandatory minimum charge in a charging document or plea agreement must also obtain supervisory approval. Each United States Attorney and Assistant Attorney General for a litigating division must determine, and designate, the appropriate level of supervisory review of charging documents and plea agreements containing mandatory minimum charges, which must be no lower than section chief or equivalent.

Until such time that the Department has developed and implemented a software program that enables real-time, trackable reporting by districts and litigating divisions of all charges brought by the Department, 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.

[updated June 2023]