- The Washington Times - Friday, May 12, 2017

Consistent with Attorney General Jeff Sessions’ tough-on-crime approach, the Justice Department has issued new guidance to federal prosecutors that rescinds “inconsistent” Obama-era charging and sentencing policies and requires that defendants be charged with the most serious, provable charges possible.

The new guidance, issued by Mr. Sessions late Thursday to federal prosecutors across the country, will likely result in more frequent use of mandatory minimum sentences and an increase in the number of people in federal prison.

“I have empowered our prosecutors to charge and pursue the most serious offense, as I believe the law requires,” Mr. Sessions said Friday during a briefing on the memo. “It means we are going to meet our responsibility to enforce the law with judgement and fairness.”

As a senator, Mr. Sessions opposed criminal justice bills that sought to reduce mandatory minimum sentences, and as the nation’s top law enforcement officer, he has regularly sounded the alarm over a recent uptick in violent crime in some cities. His two-page memo rescinds prior guidance issued by former Attorney General Eric H. Holder Jr. as part of the “Smart on Crime” initiative that was meant to discourage harsh sentences for certain drug-related offenses.

While the Sessions memo does not lay out strict standards for charging and sentencing, it directs prosecutors to bring the most serious, provable offenses against defendants — charges that by nature will bring about longer prison sentences.

“This policy affirms our responsibility to enforce the law, is moral and just, and produces consistency,” the memo states. “This policy fully utilizes the tools Congress has given us. By definition, the most serious offenses are those that carry the most substantial guidelines sentence, including mandatory minimum sentences.”

The memo leaves in place some discretion for prosecutors to seek departures from the standard, but it requires they receive supervisory approval and document the reason for any departure in each case file.

“It is important to note that unlike previous charging memorandum, I have given our prosecutors discretion to avoid sentences that would result in an injustice,” Mr. Sessions said.

Under the Holder memo, prosecutors were directed not to include drug quantity amounts in criminal charges that would trigger mandatory minimum sentences under certain circumstances — such as if the defendant’s actions did not involve violence or threat of violence, or if the person had no significant ties to drug-trafficking organizations or gangs.

For example, under federal law, possession of 100 grams of heroin or 100 kilograms of marijuana would, on a first offense, trigger a five-year mandatory minimum sentence. Under the Holder memo, prosecutors might only include in charging documents that a person had 75 grams of heroin to avoid being boxed in by the mandatory minimum sentence.

The full amount of drugs would still have been disclosed during sentencing, but the mandatory minimum prison sentence would be off the table.

Prosecutors will also be required in each case to disclose at sentencing “all facts that impact the sentencing guidelines or mandatory minimum sentences” and will be expected to make recommendations for sentencing that fall within the appropriate guidelines — factors that are determined by the severity of the crime as well as the offender’s criminal history.

According to statistics from the U.S. Sentencing Commission, the number of drug crimes given mandatory five- or 10-year sentences dropped, from an average of 14,000 from 2011 to 2013 to around 10,000 in 2014. Before stepping down in 2015, Mr. Holder said his policy of leniency for nonviolent and low-level drug users caused federal drug prosecutions to drop 6 percent in 2014.

The drop in drug charges showed that prosecutors “felt comfortable deviating from whatever the most serious provable offense was,” said Doug Berman, professor at Ohio State University’s Moritz College of Law. “This says ‘Don’t feel so comfortable about that.’”

During the time the Holder memo has been in effect, the federal prison population dropped, from a high of approximately 219,000 inmates in 2013 to 192,000 inmates in 2016.

“One of the reasons we’ve see the prison population go down was Eric Holder’s policy of not pursuing the longest possible sentence,” said Ames Grawert, counsel in the Justice Program at the Brennan Center for Justice.

The degree to which Mr. Sessions’ memo will reverse that trend will depend on the type of oversight that the Deputy Attorney General provides. If the Justice Department chooses to keep a close eye on the number of requests for sentences outside the recommended sentencing guidelines or departures from charging the most serious crime, prosecutors will likely feel discouraged from doing so, Mr. Grawert said.

Mr. Berman agrees that the degree the new policy affects the criminal justice system will hinge on whether the Justice Department spends time and energy making sure the policy is followed. He cautioned that while the Holder memo increased prospects for leniency in the system, “it’s still not that lenient.”

For drug-related offenses, “the average sentence is still in the neighborhood of five years if not longer,” Mr. Berman said. “It’s not like they are letting everyone out as soon as they come in the system.”

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