By Sari Horwitz and Matt Zapotosky
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.
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.
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.
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.
“This policy fully utilizes the tools Congress has given us,” the attorney general’s memo says. “By definition, the most serious offenses are those that carry the most substantial guidelines sentence, including mandatory minimum sentences.”
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.
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.”