Attorney General (AG) Jeff Sessions issued an order on Thursday, asking federal prosecutors to mete out the toughest charges and sentences against suspected criminals, a move that effectively reverses an Obama-era order from Eric Holder asking prosecutors to reduce penalties for nonviolent drug offenses. In a memo from the Office of the Attorney General (OAG), Sessions returned to the “tough-on-crime” framework of President George W. Bush, which entails a focus on mandatory minimums. Given that Sessions’ order is broader than Bush’s, the onus will fall on US attorneys and assistant attorneys general to make judgements regarding this new policy.
Of course, Session’s policy did not come out of the blue. In late March, he put out a press release and a memo asking federal prosecutors “to engage in a focused effort to investigate, prosecute and deter the most violent offenders.” Sessions also pushed for the creation of a Task Force on Crime Reduction and Public Safety to “comprehensively address illegal immigration, drug trafficking, and violent crime.”
The Language of the Memo
As stated in the memo, “[…] 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.” Sessions goes on to define the leeway given to US attorneys: “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.” Elsewhere, Sessions noted that all prosecutors should hand over all facts that pertain to mandatory minimum sentences, a point that directly counters former AG Eric Holder’s memo regarding federal prosecutions.
The Preceding Memo
In a directive from 2013, Holder encouraged prosecutors to consider the specific context in which a crime occurred and to “exercise […] discretion over charging decisions.” Holder’s memo also indicated that the “most severe mandatory minimum penalties [should be] reserved for serious, high-level, or violent drug traffickers.” Specifically, Holder directed prosecutors to leave out details such as drug quantities from charging orders – in certain circumstances – to prevent harsh penalties from automatically taking effect.
As justification for these measures, Holder wrote ““Long sentences for low-level, nonviolent drug offenses do not promote public safety, deterrence and rehabilitation.”
The Effects of the Memo
According to an analysis from the Pew Research Center, federal criminal prosecutions have fallen to the lowest level in 20 years. But it is likely that Sessions’ directive will reverse the downward trend in federal prosecutions. However, it should be noted that changes at the federal level have a limited effect on the overall incarceration rate, as most incarcerated people are held in state and local prisons, according to the most recent report from the Prison Policy Initiative.
That’s not to say that federal decisions regarding criminal justice have zero effect on the problem of mass incarceration. Sessions’ threat to strip sanctuary cities of their funding if they do not comply with the Trump administration’s immigration policy is but one way the federal government can directly influence local law enforcement.
Both Trump and Sessions have claimed the mantle of the “War on Drugs,” pledging to tackle supposedly high crime rates. However, according to the FBI’s Uniform Crime Report, the crime rate was lower in 2015 than at any time between 1965 and 2009 (as parsed out by Vox).
And even if crime rates were increasing, the most effective response is certainly not mass incarceration, as suggested by a policy paper by Common Justice. Instead of mass incarceration, we might consider investing in socially progressive measures such as universal healthcare, equitably funded public schools and a robust welfare system, measures that would effectively decrease violent crime by preventing the social trauma that causes it.
Given this directive, it becomes even more urgent that if you are charged with a federal crime, or if there is a possibility that you might be charged, you retain an experienced criminal defense attorney.