Attorney General Jeff Sessions is reversing one of the central elements of the Obama administration’s criminal justice reform agenda: a Justice Department policy that led to prosecutors in drug cases often filing charges in a way that avoided triggering mandatory minimum sentences in federal law.
Sessions is withdrawing a 2013 directive from Attorney General Eric Holder that instructed federal prosecutors not to specify the amount of drugs involved when charging low-level and non-violent drug offenders. That policy effectively gave judges discretion to set sentences lower than the mandatory punishments ranging from five years to life in prison federal law dictates when someone is convicted of a crime involving a certain quantity of illegal drugs.
In a memo distributed to federal prosecutors nationwide Thursday, Sessions said the department default in future cases will return to a previous policy of filing the most serious charge available against a defendant under the provable facts.
"It is a core principle that prosecutors should charge and pursue the most serious, readily provable offense," Sessions said in the directive, dated Wednesday.
The attorney general suggested that moves to lessen the impact of mandatory minimums should come from Congress, rather than being unilaterally implemented by the Executive Branch.
"This policy affirms our responsibility to enforce the law, is moral and just, and produces consistency. This policy fully utilizes the tools Congress has given us," he wrote.
Sessions’ move bucks a growing trend in recent years—in Washington and in states across the country—to abandon some of the harshest sentencing policies created in the 1980s-era war on drugs. Many experts say those laws and sentencing rules led to drug offenders spending decades in prison or even receiving life behind bars, when lesser sentences would have been adequate. The laws also ballooned the prison population, leading to costs that were unsustainable for some state governments.
"The Justice Department’s expected shift to prosecuting and incarcerating more offenders, including low-level and drug offenders, is an ineffective way to protect public safety," Brett Tolman, a U.S. Attorney for Utah under President George W. Bush, said in a statement anticipating the policy change. "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 combatting violent crime. This will help law enforcement do our jobs better.”
However, Sessions’ action does appear to dovetail with his concern that violent crime and drug-related crime are on the rise and that more aggressive law enforcement can help combat that trend. While violent crime statistics have ticked up in the past couple of years, they remain near historic lows. There is a bipartisan consensus that certain forms of drug abuse are on the rise, particularly abuse of opioids and prescription painkillers.
Speaking at an opioid-abuse summit in West Virginia Thursday, Sessions conceded that problem won’t be solved solely by putting more people in prison but he insisted that tougher law enforcement is an essential part of the solution.
"It is a big, critical part of it," the attorney general said. "We’re on a bad trend right now. We’ve got too much complacency about drugs. Too much talk about recreational drugs," Sessions said, railing against what he called "the pro-drug crowd."
While the new policy does instruct prosecutors to generally pursue the most serious provable charge, it does allow for exceptions based on "good judgment." The policy does not list any criteria for those exceptions, but says they must be approved by supervisors in U.S. attorneys’ offices or at Justice Department headquarters.
Sessions’ move will change plea negotiations with defendants, although it’s not entirely clear what the ultimate impact will be. Individuals transporting a large quantity of drugs or with tangential involvement in a conspiracy involving large amounts of drugs will expect to more often be exposed to the potential of a stiff minimum mandatory sentence, which could induce them to cooperate.
Much will depend on the exceptions allowed under the new policy and whether prosecutors use that mechanism to file reduced charges against such cooperators or whether prosecutors use their continuing discretion in such instances not to file any charges at all against the lowest-level participants in a crime.