- The Washington Times - Sunday, May 14, 2017

Critics panned Attorney General Jeff Sessions’ decision to pursue stiffer criminal charges and longer prison sentences against defendants as “draconian” and “dumb on crime,” arguing that the rollback of Obama-era policy subjects low-level offenders to unduly harsh punishment.

Criminal justice experts and former prosecutors say the new policy will result in more people going to prison and spending more time behind bars. But they also say the degree to which the changes will reverse recent declines in incarceration hinges on how strictly the Justice Department’s 93 U.S. attorneys enforce the policy and whether officials in Washington micromanage their decisions.

“There will be a lot of variation among the U.S. attorney offices as to how they go about this,” said John Walsh, who served as U.S. attorney for the District of Colorado from 2010 to 2016.

Mr. Sessions’ new policy, announced Friday, requires prosecutors to charge defendants with the most serious offenses they can prove, and requires all factors about the crime be disclosed at sentencing — a departure from past policy that likely will trigger more mandatory minimum sentences.

The attorney general described his policy as giving prosecutors “discretion to avoid sentences that would result in an injustice” by allowing them to seek departures from the guidelines as long as they clear the decision with their district’s U.S. attorney or another designated supervisor, and document the reasoning in each case file.

Requiring a line prosecutor to run a charging decision by a U.S. attorney is a high bar, Mr. Walsh said.

“Some U.S. attorneys will say, ‘This has to come to me every time’ and that will have a chilling effect” on prosecutors seeking departures from the policy, Mr. Walsh said.

In other offices, some may push the approval authority down the chain to line supervisors in specific units, a level where prosecutors may feel more comfortable seeking departures from the policy and therefore do so more frequently, he said.

Mr. Sessions has yet to appoint any of his own U.S. attorneys to lead Justice Department offices across the U.S. Acting officials currently hold the roles after Mr. Sessions fired the remainder of the U.S. Attorneys who had been appointed by his Obama-era predecessors.

Former prosecutors say prospective candidates will be asked how they feel about the order and their thoughts on enforcing it during interviews for those positions.

“When the president moves to nominate new U.S. attorneys, I would expect that the prospective candidates will be interviewed on whether they approve of these policy changes and whether they will follow through on implementing the changes once they are confirmed,” said Ronald Machen, former U.S. attorney for the District of Columbia.

Ames Grawert, counsel in the Justice Program at the Brennan Center for Justice, said he expects the Justice Department “will keep U.S. attorneys on a very tight leash,” based on the wording in Mr. Sessions’ policy, specifically the requirement for documentation of departures from the guidelines.

And that’s where criminal justice reform advocates see the prospect for low-level offenders to get hit with unnecessarily harsh sentences.

Former Attorney General Eric Holder, whose own initiatives were rescinded by Mr. Sessions, called the new policy “unwise” and “ill-informed.”

“The policy announced today is not tough on crime. It is dumb on crime,” Mr. Holder said in a statement Friday. “It is an ideologically motivated, cookie-cutter approach that has only been proven to generate unfairly long sentences that are often applied indiscriminately and do little to achieve long-term public safety.”

Mr. Holder’s policies, part of the Obama administration’s “Smart on Crime” initiative, were meant to discourage harsh sentences for certain drug-related offenses.

One policy rescinded by Mr. Sessions directed prosecutors not to include total drug quantities in criminal charges when doing so would trigger mandatory minimum sentences under certain circumstances — such as if the defendant’s actions did not involve violence or a threat of violence, or if the person had no significant ties to drug-trafficking gangs.

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

Mr. Sessions said Friday that the new rules will enable prosecutors to more effectively target drug-related crime, which he blames for some cities’ recent upticks in violent crime.

“We are returning to the enforcement of the law as passed by Congress — plain and simple,” Mr. Sessions said. “If you are a drug trafficker, we will not look the other way.”

The reversal gives prosecutors more tools against drug-trafficking gangs, Lawrence Leiser, head of the National Association of Assistant U.S. Attorneys, told The Associated Press.

But using the policy as a means to go after drug cartels could end up punishing low-level dealers or drug mules more harshly than mid- or high-level leaders of those organizations, Mr. Machen warned.

“When prosecutors are directed to seek more serious charges and harsher sentences across the board in an effort to go after leaders of criminal organizations, it’s the lower level offenders — who often don’t have the ability to cooperate up the chain — who frequently feel the brunt of the impact.” Mr. Machen said.

Sen. Rand Paul, Kentucky Republican, criticized the new policy, saying efforts to combat the nation’s drug epidemic should be viewed as a health crisis rather than as a criminal matter.

“Mandatory minimum sentences have unfairly and disproportionately incarcerated too many minorities for too long,” Mr. Paul said. “Attorney General Sessions’ new policy will accentuate that injustice.”

While the Holder memo has been in effect, the federal prison population dropped from about 219,000 inmates in 2013 to 192,000 in 2016.

According to 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 about 10,000 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.’”

If prosecutors worry about getting in trouble for seeking deviations from the guidelines in the estimated 75,000 to 100,000 drug cases brought every year, the result will be that they don’t seek that discretion even in cases in which it might be warranted, Mr. Berman said.

“This may be a perfectly fine policy in 99 percent of the cases,” he said. “But that still means that — run the numbers — there are going to be hundreds of cases a year when this policy is not right and someone is going to get slammed when they are a low-level offender.”

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