Attorney General Jeff Sessions overturned the sweeping criminal charging policy of former attorney general Eric H. Holder Jr. and directed his federal prosecutors Thursday to charge defendants with the most serious, provable crimes carrying the most severe penalties. In a speech Friday, Sessions said the move was meant to ensure that prosecutors would be “un-handcuffed and not micromanaged from Washington” as they worked to bring the most significant cases possible. “We are returning to the enforcement of the laws as passed by Congress, plain and simple,” Sessions said. “If you are a dru g trafficker, we will not look the other way, we will not be willfully blind to your misconduct.”
The Holder memo, issued in August 2013, instructed his prosecutors to avoid charging certain defendants with drug offenses that would trigger long mandatory minimum sentences. Defendants who met a set of criteria such as not belonging to a large-scale drug trafficking organization, gang or cartel, qualified for lesser charges — and in turn less prison time — under Holder’s policy.
Civil liberties advocates at the time praised the move as appropriately merciful — potentially preventing people from facing lifelong penalties for crimes that did not warrant such a punishment. But Sessions’s new charging policy, outlined in a two-page memo and sent to more than 5,000 assistant U.S. attorneys across the country and all assistant attorneys general in Washington, orders prosecutors to “charge and pursue the most serious, readily provable offense” and rescinds Holder’s policy immediately.
Sessions said prosecutors would have discretion to avoid sentences “that would result in an injustice,” but his message was clear: His Justice Department will be tougher on drug offenders than its predecessor.
“These are not low-level drug offenders we, in the federal courts, are focusing on,” Sessions said. “These are drug dealers, and you drug dealers are going to prison.”
The Sessions memo marks the first significant criminal justice effort by the Trump administration to bring back the toughest practices of the drug war, which had fallen out of favor in recent years with a bipartisan movement to undo the damaging effects of mass incarceration. “Drug trafficking is an inherently dangerous and violent business,” Sessions said. “If you want to collect a drug debt, you can’t file a lawsuit in court. You collect it with the barrel of a gun.”
Civil liberties advocates condemned the measure as a return to ineffective policies. “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 common-sense reforms to sentencing policy, and not a return to the draconian policies that have already cost us too much.”
The new policy is expected to lead to more federal prosecutions and an increase in the federal prison population. In February, Sessions seemed to prepare for that inevitability, reversing a directive from previous deputy attorney general Sally Yates for the Justice Department to stop using private prisons to house federal inmates. Yates said at the time that doing so was possible because of declining inmate numbers. Sessions, though, said it had “impaired the [Bureau of Prisons’] ability to meet the future needs of the federal correctional system” — hinting that he saw a very different future for putting people behind bars.
In speeches across the country, including his first major address as attorney general, Sessions has talked of his belief that recent increases in serious crime might indicate that the United States stands at the beginning of a violent new period. He has noted that the homicide rate is half of what it once was, but he has said he fears times of peace might be coming to an end if law enforcement does not quickly return to the aggressive tactics it once used.
In his speech Friday, Sessions made many of the same points.
“The murder rate has surged 10 percent nationwide, the largest increase in murder since 1968, and we know that drugs and crime go hand in hand. They just do,” Sessions said. “The facts prove that’s so.”
Sessions recently ordered the Justice Department to review all its reform agreements with troubled police departments across the country — which he says stand in the way of tough policing — and marijuana advocates fear he might crack down on the drug even in states that have legalized it.
The Sessions memo was largely crafted by Steven H. Cook, a federal prosecutor who was president of the National Association of Assistant U.S. Attorneys and is now detailed to the Justice Department. Cook was a harsh critic of the Obama administration’s criminal justice policies. The implementation of Sessions’s memo will be overseen by Deputy Attorney General Rod J. Rosenstein, who has come under criticism in recent days for the firing of former FBI director James B. Comey.
The new policy revokes Holder’s previous guidance to prosecutors to not specify the quantity of drugs in the charges they brought to avoid triggering mandatory minimum sentences — provided the defendant did not have a significant criminal history, was not violent, or was not a leader of an organization or tied to a gang. That was particularly significant, because large quantities of drugs typically forced judges to impose stiff sentences — 10 years for a kilogram of heroin, five kilograms of cocaine or 1,000 kilograms of marijuana. Prosecutors, too, could use the threat of a mandatory minimum penalty to facilitate plea bargains, and some were irked that Holder’s memo stripped them of that tool.
Cook has said that the Holder memo “handcuffed prosecutors” and it limited when “enhancements” can be used to increase penalties, an important leverage when dealing with a career offender and getting them to cooperate.
Sessions’s memo says there could be exceptions, but those cases must be approved by a U.S. attorney, assistant attorney general or other supervisor, and the reasons documented in writing.
The memo also directs prosecutors to always pursue sentences with the range calculated by federal guidelines — which are sometimes above even the mandatory minimums — unless a supervisor says it is okay to do otherwise.
“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,” the memo says. “In that case, prosecutors should carefully consider whether an exception may be justified.”