Attorney General Jeff Sessions overturned the sweeping criminal charging policy of former attorney general Eric H. Holder Jr. and directed his federal prosecutors Thursday to charge defendants with the most serious, provable crimes carrying the most severe penalties.
In a speech Friday, Sessions said the move was meant to ensure that prosecutors would be “un-handcuffed and not micromanaged from Washington” as they worked to bring the most significant cases possible.
“We are returning to the enforcement of the laws as passed by Congress, plain and simple,” Sessions said. “If you are a drug trafficker, we will not look the other way, we will not be willfully blind to your misconduct.”
The Holder memo, issued in August 2013, instructed his prosecutors to avoid charging certain defendants with drug offenses that would trigger long mandatory minimum sentences. Defendants who met a set of criteria such as not belonging to a large-scale drug trafficking organization, gang or cartel, qualified for lesser charges — and in turn less prison time — under Holder’s policy.
For all Sessions’s (mostly exaggerated) talk about rising violent crime, it’s unclear how directing federal prosecutors to devote resources and attention to comparatively low-level drug offenders is going to help. Here’s his explanation.
“Drug trafficking is an inherently dangerous and violent business,” Sessions said. “If you want to collect a drug debt, you can’t file a lawsuit in court. You collect it with the barrel of a gun.”
Sounds like a good reason to decriminalize drugs. When was the last time you heard about a Lowenbrau deal gone bad? In any case, here’s a roundup of the critical reactions . . .
Former U.S. attorney Brett Tolman, speaking for Law Enforcement Leaders to Reduce Crime and Incarceration:
“To maintain law and order, we need effective policing and prosecution. The Justice Department’s shift to prosecuting and incarcerating more offenders, including low-level and drug offenders, is an ineffective way to protect public safety. Decades of experience shows we cannot arrest and incarcerate our way out of America’s drug problem. Instead, we must direct resources to treatment and to specifically combating violent crime. This will help law enforcement do our jobs better.”
Inimai Chettiar of the Brennan Center:
“The Trump administration is returning to archaic and deeply-flawed policies. Sessions is leaving little to no room for prosecutors to use their judgement and determine what criminal charges best fit the crime. That approach is what led to this mess of mass incarceration. It exploded the prison population, didn’t help public safety, and cost taxpayers billions in enforcement and incarceration costs.”
FAMM is gravely disappointed with the new charging memo issued today by Attorney General Jeff Sessions. While we appreciate the attorney general’s commitment to reducing crime and combating dangerous opioid abuse, we think his strategy is misguided, unsupported by evidence, and likely to do more harm than good. Indeed, the drug epidemic challenging our country today is a devastating indictment of the one-size-fits-all punishment regime that General Sessions seeks to expand. His charging memo throws decades of improved techniques and technologies out of the window in favor of a failed approach.
We know how this story ends. At the beginning, we are told that mandatory minimums will be reserved for the “worst of the worst”—cartel leaders and kingpins, and violent gang leaders. But then we will watch prosecutors demand and get mandatory life sentences for people like Evans Ray and 15-year sentences for first-time offenders suffering from addiction like Mandy Martinson. Even under the Obama administration’s Smart-on-Crime initiative, federal prosecutors secured a 10-year mandatory sentence for Robyn Hamilton, a young mother of two, whose case was called “the poster child” for mandatory minimum sentencing reform.
The simple fact is that 93 percent of individuals who receive mandatory minimum sentences played no leadership role in their offense. Crafted purportedly for sharks, mandatory minimums catch lots of minnows.
Udi Ofer, director of the ACLU’s Campaign for Smart Justice:
“Jeff Sessions is pushing federal prosecutors to reverse progress and repeat a failed experiment — the War on Drugs — that has devastated the lives and rights of millions of Americans, ripping apart families and communities and setting millions, particularly Black people and other people of color, on a vicious cycle of incarceration.
“With overall crime rates at historic lows, it is clear that this type of one-dimensional criminal justice system that directs prosecutors to give unnecessarily long and unfairly harsh sentences to people whose behavior does not call for it did not work. It failed for 40 years, and from the halls of state legislatures to the ballot box, the American people have said with a clear voice that they want commonsense reforms to sentencing policy, and not a return to the draconian policies that have already cost us too much.”
Eric H. Holder Jr., in a statement obtained by Rachel Maddow:
“The policy announced today is not tough on crime. It is dumb on crime. 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 . . . Abandoning this evidence-based progress and turning back the clock to discredited, emotionally motivated, ideological policy also threatens the financial stability of the federal criminal justice system.”
“Mandatory minimum sentences have unfairly and disproportionately incarcerated too many minorities for too long. Attorney General Sessions’ new policy will accentuate that injustice. 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.”
Former head of the Justice Department civil rights division Vanita Gupta, to Buzzfeed:
“The memo is truly a throwback to failed drug war policy and to an era of mass incarceration that has devastated communities of color. It just seems like the AG is out of touch with folks in his own party who have been pushing for the reform of our criminal justice laws.”
Mark Holden, chairman of the Freedom Partners Chamber of Commerce (part of the Koch network), also to Buzzfeed:
“We favor a different approach which requires changing some of the existing federal laws. Fortunately, there are already federal reform bills from last year that have broad bipartisan support that will address this issue. These reforms are consistent with those enacted by many states the past 10 years. The states have proven that communities and law enforcement are safer when the punishment fits the crime through sentencing reforms.”
Not everyone has been critical. Here are the supporters I’ve been able to find . . .
“I agree with Attorney General Sessions that law enforcement should side with the victims of crime rather than its perpetrators. This policy is simply common sense and will help reduce crime and drugs in our neighborhoods.”
Georgetown law professor and former U.S. attorney William Otis:
This has been reported as “new” guidance, but it’s not. It’s the return of the “most serious readily provable” standard that governed charging policy during most of my 18-year tenure in the US Attorney’s Office, a tenure that ended last century. The policy continued during the George W. Bush Administration.
It was right then and it’s right now. It amounts to telling prosecutors to charge what the defendant actually did. This is so obviously correct — aligning the allegations with the facts — that I have a hard time seeing any serious objection to it . . .
Sessions’ present move is a step toward restoring consistency and respect for the will of the legislature.
It will be attacked by the Left as likely to produce longer sentences. That’s probably so. However, there is a ready mechanism by which such sentences can be avoided: Mr. Nicey might consider quitting the smack business and getting a normal job like everybody else. I’m just not a partisan of the notion that it’s always the public that has to change. Instead, in both practical and moral senses, we’ll be better off when we insist that it’s the criminal who has to change. We don’t need less serious charging. We need less crime.
Criminals make choices. We should give them enhanced incentives to make better ones, for them and for us. The Attorney General’s directive does just that.