Jeff Sessions Just Wants to Enforce the Law
Attorney General Jeff Sessions has ordered federal prosecutors to charge “the most serious, readily provable offense” in criminal cases. Additionally, he is requiring prosecutors “to disclose to the sentencing court all facts that impact the sentencing guidelines or mandatory minimum sentences.” Under President Obama, former Attorneys General Eric Holder and Loretta Lynch had implemented radical changes. Sessions’ new policies return federal criminal practice to what it had been under President Clinton and both Presidents Bush. For this he has been sharply criticized by Holder and others for restoring the supposedly “failed” war on drugs and for being “dumb on crime.”
In reality, however Sessions’ prosecution memorandum applies to all criminal prosecutions and says nothing specific about drugs. Moreover, what Sessions says about prosecution — that its purpose is “to enforce the law,” which is “moral and just, and produces consistency” — is precisely what sentencing law requires. Sentencing law, in other words, should “promote respect for the law…provide just punishment…to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct.” Sessions should be applauded for these efforts.
In a 2013 prosecution memorandum, Attorney General Holder had promulgated a different policy, ordering that prosecution of drug cases be treated in a new sociological manner. This was, in effect, a substantial decriminalization. Holder cited four new principles: prosecutorial discretion and “individualized assessment” in charging crimes; a new distinction between violent and non-violent drug felonies; avoidance of the mandatory minimum sentences required by law; and consideration of the costs of incarceration.
That new policy was part of Holder’s Smart on Crime initiative, which he described as “a significant change in our approach in enforcing the nation’s laws.” Smart on Crime established other even more drastic policies concerning all federal prosecutions, not merely drug prosecutions. The centerpiece was an order for federal prosecutors to consider “disparate impacts” and “demographic disparities,” costs of incarceration, and diversion programs and community service instead of traditional prosecution.
In his 2013 memorandum, Attorney General Holder spoke of “rising prison costs.” And for several years, both liberal and conservative criminal justice reformers allied themselves with the Obama Department of Justice in railing against the costs of prisons. Yet, in fiscal year 2016, the prisons and detention budget was only about 29 percent of the Department of Justice’s budget and less than 1 percent of the whole federal budget. Besides, spotlighting the prisons budget by itself obscures the fact that law enforcement is by far the prime activity of the department: about 80 percent when the budgets of the law enforcement agencies (FBI, DEA, ATF) are added in. Doubtless, there are large percentages of the populations in Chicago, Baltimore, and Washington, D.C. who wish that those budgets were larger.
A very significant legacy of the Obama Justice Department was the endowment of the prosecutor with unprecedented discretion as well as a redefinition of the role of the prosecutor away from pursuing “the most serious, readily provable offense.” Formerly, “prosecutorial discretion” had been a minor principle in criminal practice and had never been a license to omit or reduce the enforcement of broad swaths of the law. In addition, allowing a prosecutor to make private and subjective decisions about what charges to bring eliminates the public’s ability to monitor and hold accountable the work of the prosecutor. What is more, an increase in the discretion of both prosecutors and judges inevitably causes a disparity in the sentences imposed on defendants prosecuted for the same offenses, resulting in unequal justice.
Finally, with respect to drugs, is this the right time to criticize Attorney General Sessions for seeking to enforce the drug laws? For at least the last two years, there has been intensive public discussion of the opioid epidemic — a latter-day drug epidemic unlike and arguably more severe than previous epidemics — and the news keep getting worse. For example, very up-to-date statistics released by the Maryland Department of Health and Mental Hygiene in December 2016 show that heroin deaths in that state more than doubled while fentanyl deaths quintupled since 2014.
The criminal law has the bottom-line purpose of protecting the public’s safety. In seeking fair, equal, and fully disclosed justice, Attorney General Sessions is trying to reestablish the distinction between the criminal law and other social policies.
Thomas Ascik retired as a federal prosecutor.