Federal Prosecutors Hit Back at Media Criticism of Sessions Sentencing Memo

by Ian Mason

The National Association of Assistant United States Attorneys (NAAUSA) held a conference call with journalists this week to try to set the record straight on the “Sessions Memo” sentencing policy.

“For years we kind of sat on the sideline and let other organizations like Families Against Mandatory Minimums [FAMM] and the ACLU [the American Civil Liberties Union] get a story out there that was just not factually accurate,” NAAUSA President Lawrence Leiser told the journalists, explaining why he felt it necessary to host the call:

The Department of Justice has not urged us, suggested, or had anything to do with this call. This is something we decided to do on our own because there is a lot of misinformation out there and the media is subject to that misinformation from these organizations that have an agenda that we believe is contrary to the public’s best interest.

NAAUSA represents more than 1,500 assistant U.S. attorneys, the line prosecutors of the federal criminal justice system, and convened the call after almost two weeks of mainstream media hysteria over Attorney General Jeff Sessions’s May 10 memo that overturned the sentencing policy of his predecessor in the Obama administration, Eric Holder. In 2013, Holder issued a controversial memo to all federal prosecutors, commanding them to omit facts, most typically, drug weights, from certain narcotics cases, deliberately undercharging and withholding information from federal judges to avoid triggering the mandatory minimum sentences that Congress has prescribed for serious drug offenders.

The Holder Memo reversed long-standing DOJ policy, which called for prosecutors to charge defendants with the “most serious readily provable offense” in all cases. The stated aim was to “refine our charging policy regarding nonviolent, low-level drug offenders.” It created a list of criteria such as being “non-violent,” not a member of a drug cartel, no extensive criminal history, and more.

The Sessions Memo returned to the policy crystallized in the 2003 Ashcroft Memo, named after President George W. Bush’s Attorney General John Ashcroft, of charging defendants in all cases with the most serious offense prosecutors feel will succeed at trial, but importantly, allows U.S. Attorneys and other high-level prosecutors to pursue lesser charges in exceptional cases where they explain their decision in writing.

“Clearly one of the primary purposes of this time honored policy is to promote consistent application of the law across our country. Consistency of charging policy is one of the hallmarks of justice,” Leiser said of the “most serious readily provable offense” charging guideline.

The announcement of a return to this policy, albeit with the added discretion given to U.S. attorneys for exceptional cases,  set off hand-wringing and outrage throughout the press, citing concern for the “low-level” drug offenders in the new sentencing regime.

The Baltimore Sun ran an op-ed, calling it “foolish.” The New York Post published a column by Reason magazine editor Jacob Sullum calling the memo “dumb and dangerous,” saying it “signals a return to unfair, ineffective drug policies that have been rightly repudiated by politicians across the political spectrum.” Sullum calls the sentences a relic of the “Just Say No era.”

Even the conservative Washington Examiner‘s Patrick Wohl hit Sessions on the memo, saying it “doesn’t target serious drug offenders” and calling for sentencing reform.

The introduction Tuesday of the “Justice Safety Valve Act” only intensified the criticism of Attorney General Sessions in the media. The act, which would reduce sentences for certain drug offenders and remove some mandatory minimums, was introduced this time by Sen. Rand Paul (R-KY), Sen. Patrick Leahy (D-VT), and Sen. Jeff Merkley (D-OR). When it was introduced in roughly the same form in both 2013 and 2015, it failed to pass.

Rolling Stone painted the act as an attempt to “rein in” Sessions. The left-wing magazine cites Sen. Paul’s pointing to John Horner and the now-released Weldon Angelos, who received long mandatory minimum sentences for their crimes, as examples of the flaws in Sessions’ approach. Tana Ganeva, the article’s author, fails to note that neither of these people would be affected in any way by the Sessions Memo. Angelos not only had a prior conviction, but received his mandatory minimum sentence not as a result of drug weights, but because he carried a firearm, twice, while he sold drugs.

Horner, also previously convicted, was sentenced in Florida state court, and his sentence would not even be affected by the Safety Valve Act’s passage.

All these pieces conflate the impact of the Sessions Memo with the penalties for drug crimes, which are set by Congress. If the sentences are really “repudiated by politicians across the political spectrum,” those politicians have, under both Democratic and Republican administrations and congressional majorities, left the sentences largely unchanged.

“The Department of Justice has an obligation under the United States Constitution to faithfully execute the laws passed by Congress, and it will do so,” DOJ Principal Deputy Director of Public Affairs Ian Prior told Breitbart News when asked about the issuance of the Sessions Memo.
“Ultimately, assistant United States attorneys do not make the law; we enforce it,” NAAUSA Treasurer Steve Wasserman explained to the reporters:

Mandatory minimums are a creation of the Congress, the people’s representative. Congress has carved out certain criminals and types of offenses that it believes require a minimum punishment. … The attorney general is simply saying we want you to follow the will of Congress and pursue these cases and criminals in a fashion that is keeping with the laws of the country.

The Holder Memo, by prohibiting prosecutors from mentioning facts they could readily prove to deliberately avoid these laws, substituted former Attorney General Holder’s criteria for how drug defendants should be charged not only for judgment of line prosecutors, but the specific command of Congress.

“There’s nothing … other than Eric Holders own personal opinion of what he considered to be a low-level offender, that provides that we should ignore the law,” Wasserman told reporters, explaining that the law, as written by Congress, which already includes several “safety valve” provisions and the discretion given to senior prosecutors under the Sessions Memo already provides ample avenues for sparing the truly deserving from long terms in prison:

Pursuing it doesn’t necessarily mean that the person initially charged with the mandatory minimum is going to end up with the mandatory minimum sentence. In fact, only about 13% of our federal prisoners are serving mandatory minimum sentences and the reason for that is that even though we may charge, the individual may meet the safety valve requirement … or they may be someone who is willing to cooperate with us … that allows us to go back to the court … and explain that this is someone who has provided us with what we call “substantial assistance” which allows the court to reduce the mandatory minimum.

The mandatory minimum sentences that sentencing reform advocates and their supporters in the media decry kick in at weights that are hardly typical of personal use or small-scale dealing. According to U.S. Sentencing Commission materials five-year minimums apply to first offenders only when caught with, for example, 100 grams of heroin (approximately 1000 doses), 500 grams of cocaine,  or 100 kilograms of marijuana. Ten-year sentences kick in at one kilogram of heroin, five kilograms of cocaine, 280 grams of crack cocaine, or a metric ton of marijuana.

“By definition, those are not low-level offenders. The drug traffickers who are selling those amounts, that are worth literally tens of thousands if not hundreds of thousands of dollars on the street, are not low-level offenders. They are significant drug traffickers,” Wasserman said.

Referring to non-profits like FAMM that journalists often cite for the idea the Sessions Memo will lead to long prison terms for sympathetic defendants caught up in the edges of the drug trade, Wasserman told reporters:

The people who have been in favor of sentencing reform have done their best to conflate the state and federal criminal justice systems and leave people with the impression that we are prosecuting, at the federal level, street corner dealers that have a small bag of cocaine or marijuana on them or some kid that’s smoking a joint in his college dorm room.

Part of the problem with this characterization of the Sessions Memo is the failure to distinguish between the federal criminal justice system and the state systems on which the Sessions Memo has absolutely no effect. According to 2013 Bureau of Justice Statistics (BJS) numbers, only around one in ten prisoners is incarcerated by the federal government. Those arrested by federal law enforcement or referred to U.S. attorneys’ offices for prosecution tend to be more serious offenders. For example, in 2012, the BJS estimated more than 99 percent of federal drug prisoners were in custody for trafficking, not simple possession. Wasserman noted:

There’s a tendency to conflate the state and federal system. We at the federal level don’t prosecute “low-level drug offenders.” We don’t prosecute users. Less than one percent of the federal prison population consists of inmates who are serving sentences for simple possession, and in almost every one of those cases, those individuals are couriers that plead down to a simple possession charge from a trafficking offense.

Pressed by a reporter on the opposition from some Americans to the implementation of Congress’s mandatory minimums, Wasserman offered a full-throated defense not only of the Sessions Memo, but also the wider tough-on-crime policies Attorney General Sessions advocated as a senator and now seeks to enforce as attorney general: “People are not in favor of going light on drug dealers. That’s a narrative that’s been pushed all too often by pro-sentencing reformers and, frankly, the media.

When people understand the facts, when they understand where we came from 25 years ago when crime was double what it is now, and there was revolving door justice, where drug traffickers were receiving a slap on the wrist, that we cut crime in half, that we have convinced many of these offenders who otherwise never would have cooperated to cooperate so we can continue to dismantle these drug trafficking organizations, then they understand that the mandatory minimums are actually useful. Sentences have gotten shorter, the prison population has gone down significantly, but we’re also starting to see crime tick back up.”