Attorney General Jeff Sessions is committed to reversing the lax law enforcement policies of his predecessors, Eric Holder and Loretta Lynch. Yesterday, he took a significant step in that direction with an order to federal prosecutors regarding the way criminal defendants are to be charged. Sessions instructed:
[I]t 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 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.
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. In that case, prosecutors should carefully consider whether an exception may be justified. Consistent with longstanding Department of Justice policy, any decision to vary from the policy must be approved by a United States Attorney or Assistant Attorney General, or a supervisor designated by the United States Attorney or Assistant Attorney General, and the reasons must be documented in the file.
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.
The left is outraged and some on the right are unhappy. However, Bill Otis reminds us that the “most serious readily provable” standard was the Justice Department’s norm until the Obama administration.
It’s also the right policy. As Bill says:
It amounts to telling prosecutors to charge what the defendant actually did. This is so obviously correct — aligning the allegations with the facts — that I have a hard time seeing any serious objection to it.
The second point in Sessions’ directive addresses what Daniel Horowitz describes as the Holder Justice Department’s attempt avoid mandatory minimum sentences for drug dealers by “us[ing] discretion to essentially have prosecutors obfuscate from judges the full scope of evidence and facts of the case that would impact sentencing” under the sentencing guidelines. Sessions is directing federal prosecutors to end this practice.
The National Association of Assistant United States Attorneys lauded Session’s directive. It said that the move will will make the public safer and give prosecutors to “tools that Congress intended” to lock up drug dealers and dismantle gangs.
The point about Congress’ intent is well made. The Obama administration’s charging and sentencing practices were an attempt to override what Congress intended. As such, they were improper quite apart from the merits.
As Bill Otis concludes:
Criminals make choices. We should give them enhanced incentives to make better ones, for them and for us. The Attorney General’s directive does just that.