Law and Order: Sessions Reverses Obama-Era Leniency

Attorney general instructs federal prosecutors to seek most serious charges they can prove

by Brendan Kirby | Updated 12 May 2017 at 1:45 PM

Reversing the policies of the previous administration, Attorney General Jeff Sessions has given new marching orders to federal prosecutors, instructing them to seek the most serious charges they can prove in court.

That was standard operating procedure for prosecutors for decades, but former Attorney General Eric Holder took a series of steps to encourage lighter sentences for drug offenders. Guidelines for prosecutors called for not charging the top offense in certain instances and refraining from citing aggravating factors that would trigger mandatory minimum prison terms.

“If you are a drug trafficker, we will not look the other way.”

That changed this week.

“If you are a drug trafficker, we will not look the other way,” Sessions said Friday at the Department of Justice.

For unusual cases, the policy has some wiggle room. “Good judgment” in some circumstances demands that prosecutors not adhere to a strict application of the new policy, the memo states. In those instances, front-line prosecutors can seek lesser charges with the permission of an assistant attorney general, a U.S. attorney, or other supervisor.

“I trust our prosecutors in the field to make good decisions,” Sessions said. “They deserve to be un-handcuffed and not micromanaged from Washington. Rather, they must be allowed to apply the law to the facts of each investigation. Let’s be clear: We are enforcing the laws that Congress has passed. That is both our fundamental mission and our constitutional duty.”

Declining Prison Population
Justice Department policy have impacted incarceration
YearFederal Inmates
2010210.2K
2011217.8K
2012218.7K
2013219.3L
2014214.2K
2015205.7K
2016192.2K
Source: Bureau of Prisons

Rank-and-file federal prosecutors welcomed the change.

“These tools are in accord with what Congress has authorized and deemed necessary to fight crime and ensure public safety,” National Association of Assistant U.S. Attorneys President Lawrence Leiser said in a statement.

Sentencing-reform advocates, however, criticized the decision. Families Against Mandatory Minimums (FAMM) argued in a prepared statement that the policy is “misguided, unsupported by evidence, and likely to do more harm than good.” The organization stated that 93 percent of federal defendants who have been subjected to mandatory minimum sentences played no leadership role in their offenses.

“The new charging memo will also have an enormous and negative impact on the families whose loved ones are forced to serve disproportionately lengthy prison sentences,” the group stated. “FAMM represents those families. We know the consequences. More kids will grow up without a parent, causing a host of economic, educational and social challenges.”

Marc Mauer, executive director of the Sentencing Project, argued that the policy runs counter to decades of research.

“The new policy shift will have little impact on public safety, while adding exorbitant fiscal and human costs to an already bloated and destructive criminal justice system,” he said in a statement.

Sen. Cory Booker (D-N.J.), who cited Sessions’ views on criminal-justice reform as one of the most important reasons for opposing his nomination, told the attorney general in a letter Thursday that he agrees with the goal of targeting drug traffickers.

“But history has shown that misguided arrests and harsh sentencing requirements drive mass incarceration and perpetuate disparate impacts across our country,” he wrote. “I urge you to reconsider this proposal.”

On the other side of the aisle Sen. Rand Paul (R-Ky.) also lambasted Sessions, arguing that mandatory minimum sentences have unfairly incarcerated minorities at disproportionate rates.

“Instead, we should treat our nation’s drug epidemic as a health crisis and less as a ‘lock ’em up and throw away the key’ problem,” he said in a statement.

William Otis, a former federal prosecutor who in the 1980s served on a committee that helped implement the first set of sentencing guidelines passed by Congress, told LifeZette that Holder’s instructions to prosecutors were an attempt to achieve by executive action what then-President Barack Obama failed to accomplish in Congress.

Otis, who now teaches at Georgetown University's law school and writes a blog called Crime and Consequences, said critics should try to persuade lawmakers to adjust sentences.

"That's a judgment for Congress to make," he said. "They should make those arguments to Congress."

Otis said 50 years of data show that a massive and long-running drop in crime coincided with the adoption of harsher punishment and an increase in the prison population.

"It's not new. It's a restoration of sentencing policy that's been there most of my career," he said. "It seems to be the only reasonable policy … The charges should reflect the facts."

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  2. criminal-justice-reform
  3. department-of-justice
  4. jeff-sessions
  5. sentencing-reform
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