Atty. Gen. Jeff Sessions has ordered federal prosecutors to return to tough policies against drug abusers, ending a push by the Obama administration to clear prisons of lower-level criminals serving long, mandatory minimum sentences.
He rescinded two policy memos signed by a predecessor, former Atty. Gen. Eric H. Holder Jr., that told prosecutors to be cautious in their use of methods that can produce dramatically harsher jail terms.
In a memo released Friday, Sessions instructed Justice Department lawyers to “charge and pursue the most serious, readily provable offense."
By definition, he added, the most serious offenses “carry the most substantial guidelines sentence, including mandatory minimum sentences.”
Sessions long has been aggressive on drug crimes, starting in 1975 when he became a federal prosecutor, and later when he served as U.S. attorney for the Southern District of Alabama from 1981 to 1993.
During his four terms in the Senate, Sessions supported a law that reduced the difference in sentences for crack cocaine and the powdered form of the drug, a disparity that had disproportionately penalized African Americans.
But Sessions has strongly condemned marijuana use, and helped block a 2016 bill that would have eased federal sentencing for using it.
With the rise of federal mandatory sentencing laws in the 1980s and 1990s, judges were stripped of much of their discretion on how to sentence drug users.
Decisions made by prosecutors often effectively determine how long offenders will spend in prison.
For example, if federal prosecutors include the amount of drugs in their written charges, that can trigger a mandatory minimum sentence.
They also have the discretion to file motions for so-called sentence “enhancements,” which can effectively double drug sentences for repeat offenders.
Some prosecutors use these tough tools as a hammer in plea negotiations, or to force offenders to cooperate.
Starting in 2013, Holder instructed federal prosecutors to use that power more sparingly and to reserve the toughest charges for high-level traffickers and violent criminals.
“As a nation, we are coldly efficient in our incarceration efforts,” Holder said in a speech decrying the growth in America’s prison population.
The Obama-era policies led to a sharp decline in the number of drug offenders hit with mandatory minimum sentences, from 62% in 2013 to 44% last year, according to U.S. Sentencing Commission data compiled by a sentencing reform group, Families Against Mandatory Minimums.
“Those numbers will go up when you are telling prosecutors to charge the harshest crimes they can get,” said Molly Gill, FAMM’s director of federal legislative affairs.
“It’s really ironic,” she added. "Jeff Sessions touts himself as a champion of public safety, and they want to waste taxpayers’ money on people who aren’t that much of a threat.”
Gill said the crackdown ordered by Sessions and President Trump probably signals an end to efforts in Congress to reduce mandatory sentences.
“I think right now that’s probably dead,” she said.
In his memo, Sessions said prosecutors must disclose “all facts” relevant to a sentence, like drug amounts. He canceled a Holder policy that said prosecutors should not use sentencing enhancement motions to coerce guilty pleas.
If prosecutors decide to deviate from the tough policies, they have to get a supervisor’s approval, Sessions said. Deputy Atty. Gen. Rod Rosenstein will be responsible for overseeing the new guidelines.
“Our responsibility is to fulfill our role in a way that accords with the law, advances public safety, and promotes respect for our legal system,” Sessions’ memo says, saying his goal is to “fully utilize the tools Congress has given us.”
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