Jeff Sessions, our new Attorney General, issued a Memorandum to all United States Attorneys on May 10, 2017 which states, in relevant part, that “it is a core principle that prosecutors should charge and pursue the most serious, readily provable offense  By definition, the most serious offenses are those that carry the most substantial guidelines sentence, including mandatory minimum sentences.”
This Memorandum represents a significant departure (no pun intended) from the bipartisan support for overhauling the federal criminal justice system that had been intensifying in Congress over the last few years. It also reflects President Trump’s campaign promise to get tough on crime. The general targets of the new policy include narcotics and weapons offenses, and gang violence.
The problem with this Memorandum is that it also reflects a reversal of some of the more intelligent decisions made during the Obama administration concerning the federal criminal justice system, specifically, the treatment of low-level, non-violent drug offenders. For example, former Attorney General Eric Holder instructed federal prosecutors to consider the unique facts and circumstances of a particular case, and to exercise discretion in charging narcotics offenses. Significantly, in narcotics cases involving non-violent defendants with minimal criminal histories and no connection to organized crime, Holder instructed US Attorneys to omit information concerning drug quantities from charging documents, thereby avoiding the automatic trigger of harsh penalties. Mr. Sessions’ Memorandum references Mr. Holder’s prior instructions in a footnote, and rescinds them.The Memorandum not only runs contrary to Obama-era policies on crime, but to the consensus that has been building recently in Congress. An increasing number of Senators and Representatives seemed to agree that incarcerating low-level, nonviolent drug offenders for long prison terms with significant mandatory minimums was a waste of valuable criminal justice resources. Further, more than just elected federal officials were coming on board with the idea that having such defendants serve long terms of incarceration cost huge amounts of taxpayer dollars but produced few, if any, tangible benefits. Many individual states were also reviewing their sentencing criteria with an eye toward reducing the presence of this class of offender from their jail and prison populations. Many academics also supported sentencing reforms that would achieve this goal.
It is not surprising that Mr. Sessions would adopt this approach. He was one of President Trump’s earliest supporters. While serving in the Senate, he was an outspoken opponent of the bipartisan effort to reduce mandatory minimums for low-level, non-violent drug offenders. Indeed, as a Senator, he backed legislation making a second marijuana trafficking conviction a capital offense.
Many people are still hoping that federal sentencing reform will not die as a result of the policies of the new administration. They are hoping that Congress will continue to push sentencing reform through legislation, even though it may conflict the administration’s policies as articulated by Mr. Sessions. Interestingly, one of the most thoughtful recent remarks concerning this issue came from Republican Senator Mike Lee of Utah. He characterized criminal justice reform as a conservative issue, and said that “[t]o be tough on crime, we have to be smart on crime.” Senator Lee’s observations are absolutely correct. It has never been proven that harsh prison sentences with mandatory minimums in low-level drug cases do anything more than increase prison populations at taxpayer expense. Anyone remember the Rockefeller era drug laws in New York State? They made that State’s criminal justice system less efficient and more expensive and resulted in a waste of valuable resources that could have been better used elsewhere, but did little to reduce crime.
Mr. Sessions’ approach to this issue suggests strongly that his notions concerning the proper functioning of the criminal justice system are hopelessly antiquated. His Memorandum represents a costly step backwards that will ultimately do more harm than good by re-implementing failed policies. Congress will hopefully be smart enough – and strong enough – to counter it with appropriate legislation.
New Brunswick attorney James S. Friedman represents individuals charged with drug crimes in the federal courts based in New Jersey and New York City. Contact us immediately if you have been charged with a federal narcotics offense.