Timothy J. Heaphy was U.S. attorney for the Western District of Virginia from 2009 to 2014.
Last week Attorney General Jeff Sessions announced policy changes directing federal prosecutors to charge people suspected of crime with the “most serious, readily provable offense” available in every federal case. In doing so, he promised that prosecutors would be “un-handcuffed and not micromanaged from Washington.”
That justification is laughable. In actuality, the announcement demonstrates a stunning lack of faith in the decisions of line-level prosecutors. It imposes — rather than removes — the handcuffs for prosecutors, returning us to the policy of the 1990s and 2000s, when incarceration and corrections spending spiked without a measurable impact on drug use or public safety.
To understand Sessions’s lack of respect for the prosecutors he supervises, one need only examine the procedural differences between the policy he announced and those it replaced. In 2010, then-Attorney General Eric Holder gave more discretion to federal prosecutors by directing them to consider “the merits of each case, taking into account an individualized assessment of the defendant’s conduct and criminal history and the circumstances relating to the commission of the offense (including the impact of the crime on victims), the needs of the communities we serve, and federal resources and priorities.”
Holder also implemented the Smart on Crime program, which defined the circumstances in which federal prosecutors would seek mandatory minimum sentences in drug cases. Smart on Crime allowed prosecutors to deploy charges that impose mandatory minimum sentences upon offenders who supervise or manage organizations, deploy or threaten violence, or have a significant criminal history — while stopping short of such charges for lesser offenders.
The Holder policies facilitated individualized consideration and tailored outcomes in federal charging decisions. Prosecutors could consider a wide range of factors and ensure that the charge fit the crime for the defendants in each case. The policies reflected trust in career professionals who make charging decisions and a belief that they can consider all information available to achieve justice.
Sessions’s new policy does just the opposite. Rather than allowing federal prosecutors to consider individual circumstances, he directs them to pursue predetermined charges for “the most serious, readily provable offense.” While he contemplates exceptions to that blanket rule, all such requests must be routed through supervisors and justified in writing. All exceptions to the new policy will have to be approved by the U.S. attorney or assistant attorney general, who will have been selected in part because of a willingness to adhere to the attorney general’s charging policy. Given these requirements, I expect that few requests for exceptions to the directive will be made, let alone granted.
The Sessions policy should be seen for what it is: an ideological directive that divests federal prosecutors of the discretion they exercised in the previous administration. It turns prosecutors into vending machines — plugging drug quantity, criminal history and other facts into a formula that spits out the offense to be charged. In place of “individualized” consideration, we get the “most serious” offense as defined by officials in Washington.
I understand that elections have consequences. The new attorney general is entitled to change policies, reorder Justice Department priorities and deploy resources as he believes necessary. He is not entitled, however, to misstate the reality that those policies create for the career professionals who have to adhere to them. Rather than try to spin his “new” charging policy as a gift to prosecutors, he should be honest and admit that it ties their hands and strips away a large measure of their discretion.
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