Sessions Issues New Charging, Sentencing Policy to U.S. Attorneys
“Prosecutors should charge and pursue the most serious, readily provable offense.”
Attorney General Jeff Sessions has issued a memo to all 94 U.S. attorneys to advise them of a new charging and sentencing policy within the Department of Justice. This policy demands that the federal prosecutors “charge defendants with the most serious crime possible.” He wrote:
First, it is a core principle that prosecutors should charge and pursue the most serious, readily provable offense. ” This policy affirms our responsibility to enforce the law, is moral and just, and produces consistency. This policy 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 Sessions memo provides an out for prosecutors, with a few warnings. If the prosecutors do not think they need to apply the strict policy, they must receive permission from a “United States Attorney or Assistant Attorney General or a supervisor designated by the United States Attorney or Assistant Attorney General.” The prosecutors must keep an official file that provides the reasons for deviating from the policy.
Sessions reminds prosecutors that they “should carefully consider whether an exception may be justified” if they do not think they should apply the new policy.
Sessions continued:
Second, prosecutors must disclose to the sentencing court all facts that impact the sentencing guidelines or mandatory minimum sentences, and should in all cases seek a reasonable sentence under the factors in 18 U.S.C § 3553. In most cases, recommending a sentence within the advisory guideline range will be appropriate. Recommendations for sentencing departures or variances require supervisory approval, and the reasoning must be documented in the file.
Here is the text of 18 U.S. Code § 3553.
This policy will probably lead to more convictions and a higher prison population. From The Washington Post:
“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. “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.”
Now the MSM has gone into a tizzy and concentrated on drug offenses, but the memo does not mention drugs at all. Yet, it doesn’t exclude them and we all know Sessions is still madly in love with the war on drugs.
After all, the memo will overturn former Attorney General Eric Holder’s “Smart on Crime” policy. From Fox News:
Holder, who served under the Obama administration, implemented the “Smart on Crime” drug sentencing policy that focused on not incarcerating people who committed low level non-violent crimes.
The Obama administration used the “Smart on Crime” policy to combat what they believed was a high number of prosecutions of non-violent drug offenders. DOJ officials call it a “false narrative” and say unless a gun is involved, most of those cases aren’t charged period.
Officials say Holder’s “Smart on Crime” policy “convoluted the process,” and left prosecutors applying the law unevenly, which they said “is not Justice.”
Critics of the shift say it will revive the worst aspects of the drug war. But Sessions has said a spike in violence in some big cities shows the need for a return to tougher tactics.
Back in February, Sessions suggested he and the DOJ will review marijuana policies. From The Hill:
“We have a responsibility to use our best judgment … and my view is we don’t need to be legalizing marijuana,” he said at the winter meeting of the National Association of Attorneys General.
“I’m dubious about marijuana. I’m not sure we’re going to be a better, healthier nation if we have marijuana sold at every corner grocery store.”
Former President Barack Obama made no effort to stop states that voted to legalize recreational and medical marijuana.
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Comments
So what’s the penalty if (more like when) an attorney doesn’t follow these rules?
Here’s an idea: change the minimum sentencing statues through the legislative process instead of ignoring them if. Either the law is the law or it isn’t.
We all know they will plead down to a lessor charge anyway.
And, just because someone pleads to a non-violent crime it does not mean they are a non-violent criminal.
Binding sentencing laws are unconstitutional — that’s why they’re only guidelines.
So, the Sessions policy is to pursue serious cases.
This replaces the Holder policy, which was to not pursue non-serious cases.
As there’s no big conflict between these two, this policy is a change which will have no obvious effect.
There’s a new Sheriff in town.
“This policy affirms our responsibility to enforce the law, is moral and just, and produces consistency. This policy 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.”
I have serious concerns about Trump and his behavior, but appointing Sessions as AG ain’t one of them. The stark contrast and vast improvement of Trump’s cabinet picks versus those in the vile administration of former Pres. Lie All the Time allow me to sleep better at night.
The Sessions memo is only 1.5 pages long, so fast to read. A few other points to mention:
1. The terms “fair/just” and “consistency” are mentioned 4 times in this short memo.
2. Specifically, “any inconsistent previous policy …is rescinded.”
3. As noted above, there is the phrase “most serious, readily provable” to define a core principle.
4. The paragraph that tells the prosecutor about getting an exception includes the phrase “consistent with longstanding DOJ policy, any decision to vary from the policy must be approved.” So, nothing new with that point.
5. Proper documentation must be maintained in all phases of the case.
6. The attorneys should seek a “reasonable sentence under the factors…” I just added this last one after hearing the local radio station say that Sessions told his people to seek the maximum sentence. Aaarrgghh!
7. It is very readable memo with short sentences and paragraphs and little legalese. I would guess that it reads in the 10-12th grade range.
While this could just be a standard change of administration type of memo, as an accountant,I have to wonder if a review of policies and files showed major inconsistencies and documentation failures related to federal cases.
So, if two people could be charged with the same crimes with the same level of proof, Sessions is telling his staff that there should be no difference in prosecution – specifically, it should be the most serious crime with the most proof.
Hmm – a person, with no intent of distribution to others, takes a few pictures of his work station to remember where he worked, is in prison. Another person, with thousands of classified items in her possession, is still free because she had no “intent” to violate the law.
I hope they reopen the HRC case.
Exactly Liz, the Clinton case is open and shut and a serious offense.
Does this mean Hillary is going to jail?
She may be prosecuted and may even be found guilty, but she’ll never see the inside of a prison.