“It is a core principle that prosecutors should charge and pursue the most serious, readily provable offense,” wrote Attorney General Jeff Sessions in his latest policy memo. “This policy fully 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.”
Whether you agree with that or not, the reality is that Jeff Sessions has just doubled-down on the War on Drugs. The policy memo released Friday requires federal prosecutors to fully utilize the severest penalties available, even for those whose crimes are not objectively serious.
What policy changed and will it increase the prison population?
In 2013, Obama-era Attorney General Eric Holder issued the policy this new memo overturns. The idea was to reserve the harshest available punishments for “serious, high-level, or violent drug traffickers” rather than street-level users and other low-level, nonviolent drug offenders because “long sentences for low-level, non-violent drug offenses do not promote public safety, deterrence, and rehabilitation.”
Specifically, Holder’s memo instructed federal prosecutors to skip a step in charging to keep the mandatory minimum sentences out of the equation. Since the quantity of drugs involved are a major multiplier under the federal sentencing guidelines, prosecutors were urged simply not to list the amounts involved unless the defendant was a leader in a criminal organization, had a long criminal record, or used violence. Prosecutors were also asked to avoid creating an unjust disparity in sentences between defendants.
Two important reasons for Holder’s policy were the legalization of marijuana in several states and the nation’s unprecedented level of incarceration. The mass incarceration crisis is driven in large part by long sentences for drug offenders.
Sessions directly reversed Holder’s memo on listing the amounts of drugs in question. He will require federal prosecutors to disclose the amounts to the sentencing court — or obtain supervisory approval not to.
Holder called the new policy an “absurd reversal” by previously fringe elements in the debate. “The policy announced today is not tough on crime,” he 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.”