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Attorney General Jeff Sessions has ordered federal prosecutors to pursue the harshest possible charges for defendants accused of federal crimes. (AP file photo)

Federal prosecutorial policy a step backwards

 By Seth B. Orkand and Megan A. Siddall

BOSTON — In a May 10 memo, Attorney General Jeff Sessions ordered federal prosecutors to pursue the harshest possible charges for defendants accused of federal crimes. The “Sessions Memo” represents a dramatic shift from the Obama administration’s policies concerning low-level drug offenses, and runs contrary to the growing sentiment among state and federal lawmakers that the tough-on-crime policies of the 1990s were ineffective.

Although somewhat predictable from historical context, this shift is highly concerning because it ties the hands of prosecutors when making critical charging decisions, severely limits the discretion of judges to determine the most appropriate sentences in many cases, curbs the availability of innovative sentencing programs, consumes scarce federal and judicial resources, and may disproportionately subject persons of color to lengthy mandatory jail sentences.

Sessions’ move is hardly surprising. For nearly 40 years, attorneys general of each administration have oscillated between strict interpretation of the “core principle that prosecutors should charge and pursue the most serious, readily provable offense,” and a more flexible approach encouraging individualized assessments of defendants and their criminal acts.

The “core principle” referenced in the Sessions Memo was first articulated by Attorney General Benjamin Civiletti during the Carter administration. However, in 1993, Janet Reno instructed federal prosecutors that they should make charging decisions based on an analysis of which particular charges fit the specific circumstances of the case, including whether a mandatory minimum sentence might be proportional to the defendant’s conduct.

In 2003, John Ashcroft abandoned the individualized assessment and ordered prosecutors that they must charge the most serious offenses that generate the most substantial sentences. Ashcroft provided prosecutors with specific guidance on when they could seek supervisory approval for limited exceptions to this policy.

In 2010, AG Eric J. Holder Jr. returned the DOJ’s charging policy to a more flexible approach. He was particularly concerned about the “unduly harsh” effect of mandatory minimum sentences and recidivist enhancement statutes on nonviolent, low-level drug offenders.

Because Congress mandated that certain mandatory minimum sentences be imposed on the sole basis of the quantity of drugs attributed to a defendant, Holder instructed prosecutors to decline to charge the drug quantity necessary to trigger a mandatory minimum sentence for non-violent low-level drug offenders without significant criminal histories. This policy shift caused federal prosecutors to focus on more serious drug cases and bring fewer cases that carried a mandatory minimum.

Although there was a steady drop in the number of federal drug cases brought between 2012 and 2014, the percentage of those that involved a firearm increased, as did the percentage of defendants who had an aggravating role.

The Sessions Memo represents a sharp reversal of DOJ policy under the Obama administration, and again does away with the notion of an individualized assessment.

Sessions ordered prosecutors to apply strictly the policy that prosecutors charge and pursue the most serious provable offenses. “By definition,” he noted, “the most serious offenses are those that carry the most substantial guidelines sentence, including mandatory minimum sentences.”

The Sessions Memo echoes the Ashcroft policy of the early 2000s, but arguably encourages even less variance from the strict “most serious provable offense” standard because Sessions provides no guidance for what circumstances might warrant a departure from the policy.

Instead, Sessions suggests that exceptions will be rare, as “deviations from the core principle” of the policy must be “justified by unusual facts.”

The policy articulated by the Sessions Memo is a blunt weapon for a nuanced problem. By eliminating prosecutorial discretion in charging decisions, the memo elevates the virtue of consistency over an individualized assessment of the facts of each case.

The Sessions Memo also will limit the discretion of judges to impose sentences that are “sufficient, but not greater than necessary,” as required by 18 U.S.C. §3553. Federal judges typically do not have discretion to depart below a mandatory minimum sentence unless defendants meet certain strict criteria for cooperation or so-called safety valve relief from mandatory minimums for drug offenses, even if they determine that the specific circumstances of the defendants or crimes warrant lower sentences.

Increased reliance on mandatory minimums in place of prosecutorial and judicial discretion will not, as the Sessions Memo suggests, allow the law to be enforced “fairly and consistently.” There is nothing fair about treating dissimilar defendants similarly. Nor is there consistency in treating similar defendants differently. But Sessions’ policy manages to work both injustices at the same time.

On the one hand, mandatory minimum statutes do not distinguish between low-level drug mules and the high-level traffickers they work for if prosecutors attribute the same quantity of drugs to both.

On the other hand, mandatory minimums arbitrarily treat one class of defendants, for example those who barely meet the quantity of drugs triggering the minimum sentence, more harshly than similarly situated defendants found in possession of slightly smaller quantities of the same drug.

Mandatory minimums have historically been implemented in a way that disproportionately imposed lengthy prison sentences on persons of color.

Notoriously, federal law previously imposed a five-year mandatory minimum sentence for possession of 5 grams of crack cocaine, compared with the 500 grams of powdered cocaine necessary to trigger the same mandatory minimum sentence.

There is nothing fair about treating dissimilar defendants similarly. Nor is there consistency in treating similar defendants differently. But Sessions’ policy manages to work both injustices at the same time.

The so-called 1:100 ratio disproportionately impacted black defendants, who comprised the vast majority of defendants convicted of crack cocaine offenses. The Fair Sentencing Act of 2010 reduced that ratio to 1:18. This reduction was the result of political compromise and is not based on any scientific assessment of the potency of crack cocaine versus powder cocaine.

Thus, although the current regime may decrease potential sentencing disparities, it does not entirely eliminate them.

The Sessions policy will also strain already scarce law enforcement resources. An increase in lengthy prison sentences will only exacerbate the growth of the federal inmate population, which the DOJ has already characterized as “unsustainable.”

Holder criticized Sessions’ policy because, among other things, the DOJ will be forced to divert resources that could be used to detect and prevent crime to incarcerating defendants instead.

Moreover, defendants facing lengthy sentences are more likely to take their cases to trial if they are unable to engage in charge bargaining with prosecutors. That will only increase the number of cases to be tried in federal district courts.

Although tough-on-crime advocates argue that mandatory minimums reduce crime and protect the public, there is significant reason to doubt their efficacy. For example, research shows that street-level drug dealers are quickly and easily replaced by criminal networks with little impact on the drug trade.

There is therefore little reason to believe that imposing lengthy mandatory minimum sentences on low-level dealers will have any appreciable effect on public safety or crime levels.

Thus, it is particularly troubling that the Sessions Memo will undermine recent efforts to craft creative sentencing procedures that aim to rehabilitate, rather than simply incarcerate, low-level offenders.

For example, in 2015 the federal court in Massachusetts implemented an innovative deferred sentencing program called “RISE” that is aimed at rehabilitating defendants with drug addictions or deficiencies in positive decision-making and pro-social peer networks. The program requires defendants to promptly plead guilty, after which eligible defendants are closely supervised for 12 months while they participate in treatment programs, job training and other requirements. Judges may consider favorably a defendant’s successful completion of the program.

We are concerned that the Sessions Memo will result in fewer defendants being eligible or interested in RISE. Defendants are not selected for the program until after they have pleaded guilty. Therefore, federal prosecutors are not able to consider whether a defendant may be a good candidate for the program (and possibly qualify for a reduction in any sentence) at the time they make charging decisions.

Additionally, defendants facing lengthy mandatory minimum sentences have less incentive to apply for the program because they are less likely to receive favorable consideration at sentencing.

For the same reason, the panel that determines eligibility for the program will have less reason to spend limited resources on defendants who will necessarily face lengthy mandatory minimum sentences upon completion of the program.

The Sessions Memo represents a setback to the growing bipartisan consensus among state and federal legislators in favor of sentencing reform. Efforts to address the worsening opioid crisis will not be aided by harsh terms of imprisonment for low-level offenders suffering from addiction.

Law enforcement needs more flexibility to tailor appropriate punishment to the facts of each individual case, not less.

Seth B. Orkand and Megan A. Siddall are white-collar criminal defense attorneys at Demeo in Boston.


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