May 13, 2017 by

What the attorney general’s new charging policy means

Embed Share

Play Video3:30
Former attorney general Eric Holder called the reversal of his 2013 policy “dumb on crime.” The Post’s Matt Zapotosky explains what Attorney General Jeff Session’s new policy means. (Gillian Brockell/The Washington Post)
May 12 at 11:25 AM
Attorney General Jeff Sessions said Friday that he has directed his federal prosecutors to pursue the most severe penalties possible, including mandatory minimum sentences, in his first step toward a return to the war on drugs of the 1980s and 1990s that resulted in long sentences for many minority defendants and packed U.S. prisons.

Civil rights groups, Republican lawmakers and even the conservative Koch brothers issued swift condemnations of the policy, saying that Sessions was taking the nation backward. Aggressive prosecutors, however, are likely to embrace the measure as giving them more tools to do their jobs.

In the later years of the Obama administration, a bipartisan consensus emerged on Capitol Hill for sentencing reform legislation, which Sessions opposed and successfully worked to derail.

In a two-page memo to federal prosecutors across the country, Sessions overturned former attorney general Eric H. Holder’s sweeping criminal charging policy that instructed his prosecutors to avoid charging certain defendants with offenses that would trigger long mandatory minimum sentences. In its place, Sessions told his more than 5,000 assistant U.S. attorneys to charge defendants with the most serious crimes, carrying the toughest 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.

Sessions is wrong about crime in America

Embed Share

Play Video1:37
Attorney General Jeff Sessions has said over and over again that he sees the uptick in violent crime in a few major cities in the US as the start of a “dangerous trend.” Let’s take a look at the numbers. (Daron Taylor/The Washington Post)

“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.”

Holder, who launched his new charging orders in August 2013, called the Sessions policy “an unwise and ill-informed decision” that “will take this nation back to a discredited past.”

“The policy announced today is not tough on crime,” Holder said. “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.”

Sessions said prosecutors would have discretion to avoid sentences “that would result in an injustice,” but his message was clear: His Justice Department will be tougher on drug offenders than its predecessor.

“These are not low-level drug offenders we, in the federal courts, are focusing on,” Sessions said. “These are drug dealers, and you drug dealers are going to prison.”

His policy was praised by Lawrence Leiser, president of the National Association of Assistant United States Attorneys.

“The new guidance announced by Attorney General Sessions will restore the tools that Congress intended assistant U.S. attorneys to have at their disposal to prosecute drug traffickers and dismantle drug trafficking enterprises,” Leiser said. “These tools are in accord with what Congress has authorized and deemed necessary to fight crime and assure public safety.”

But Sen. Rand Paul (R-Ky), who has pushed hard for sentencing reform, said the policy will “accentuate” existing problems in the criminal justice system.

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

The Holder memo instructed prosecutors to avoid charging certain defendants with drug offenses that would trigger long mandatory minimum sentences. Under that policy, 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 therefore less prison time.

On Friday, Sessions disputed the idea that prosecutors would unfairly punish nonviolent offenders under his policy.

“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.”

Civil liberties groups condemned the measure as a return to ineffective policies — and mass incarceration.

“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,” Udi Ofer, director of the American Civil Liberties Union’s Campaign for Smart Justice, said in a statement.

A representative of Charles and David Koch, who have pressed for a change in sentencing policy, also criticized the Justice Department’s new memo.

“We favor a different approach, which requires changing some of the existing federal laws,” said Mark Holden, chairman of Freedom Partners, the funding arm of the Koch-backed political network, and general counsel for Koch Industries.

“There are less costly and more effective ways to help low-level offenders who aren’t a threat to public safety other than incarceration,” he said.

The new policy is expected to lead to more federal prosecutions and an increase in the federal prison population. In February, Sessions seemed to prepare for that, reversing a directive from former deputy attorney general Sally Yates for the Justice Department to stop using private prisons to house federal inmates.

In speeches across the country, including his first major address as attorney general, Sessions has talked of his belief that recent increases in serious crime might indicate that the United States stands at the beginning of a violent new period. He has noted that the homicide rate is half of what it once was, but he has said he fears times of peace might be coming to an end if law enforcement does not quickly return to the aggressive tactics it once used.

In his speech Friday, Sessions made many of the same points.

“The murder rate has surged 10 percent nationwide, the largest increase in murder since 1968, and we know that drugs and crime go hand in hand. They just do,” Sessions said. “The facts prove that’s so.”

With mandatory minimum sentences, large quantities of drugs can force judges to impose stiff sentences — 10 years for a kilogram of heroin, five kilograms of cocaine or 1,000 kilograms of marijuana. Prosecutors can use the threat of such sentences to facilitate plea bargains.

Holder had directed prosecutors to essentially ignore the quantities to avoid triggering stiff sentences. Sessions’s memo says there could be exceptions, but those cases must be approved by a U.S. attorney, assistant attorney general or other supervisor, and the reasons documented in writing.

“There will be circumstances in which good judgment would lead a prosecutor to conclude that a strict application of the above charging policy is not warranted,” the memo says. “In that case, prosecutors should carefully consider whether an exception may be justified.”


Leave a Reply

Your email address will not be published. Required fields are marked *