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May 12, 2017

AG Sessions issues new tougher charging and sentencing guidelines to federal prosecutors

As reported in this official Justice Department press release, "Attorney General Jeff Sessions today issued the attached memorandum [available here] establishing charging and sentencing policies for the Department of Justice." The press release further reports:

This policy was formulated after extensive consultation with Assistant U.S. Attorneys at both the trial and appellate level, as well as U.S. Attorneys and Main Justice Attorneys. It ensures that the Department enforces the law fairly and consistently, advances public safety and promotes respect for our legal system.

Attorney General Sessions will issue further remarks on the new policy later this morning.

This memorandum is relative short and to the point, and here is some of its key language:

Charging and sentencing recommendations are crucial responsibilities for any federal prosecutor.  The directives I am setting forth below are simple but important.  They place great confidence in our prosecutors and supervisors to apply them in a thoughtful and disciplined manner, with the goal of achieving just and consistent results in federal cases.

First, it is a core principle that prosecutors should charge and pursue the most serious, readily provable offense. This policy affirms our responsibility to enforce the law, is moral and just, and produces consistency.  This policy fully utilizes the tools Congress has given us.  By definition, the most serious offenses are those that carry the most substantial guidelines sentence, including mandatory minimum sentences.

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.  In that case, prosecutors should carefully consider whether an exception may be justified.  Consistent with longstanding Department of Justice policy, any decision to vary from the policy must be approved by a United States Attorney or Assistant Attorney General, or a supervisor designated by the United States Attorney or Assistant Attorney General, and the reasons must be documented in the file.

Second, prosecutors must disclose to the sentencing court all facts that impact the sentencing guidelines or mandatory minimum sentences, and should in all cases seek a reasonable sentence under the factors in 18 U.S.C. § 3553.  In most cases, recommending a sentence within the advisory guideline range will be appropriate. Recommendations for sentencing departures or variances require supervisory approval, and the reasoning must be documented in the file.

This AP article about this new AG Sessions' memo provides this brief and effective account of what these directions change:

The directive rescinds guidance by Sessions’ Democratic predecessor, Eric Holder, who told prosecutors they could in some cases leave drug quantities out of charging documents so as not to trigger long sentences. Holder’s 2013 initiative, known as “Smart on Crime,” was aimed at encouraging shorter sentences for nonviolent drug offenders and preserving Justice Department resources for more serious and violent criminals.

Though Holder did say that prosecutors ordinarily should charge the most serious offense, he instructed them to do an “individualized assessment” of the defendant’s conduct. And he outlined exceptions for not pursuing mandatory minimum sentences, including if a defendant’s crime does not involve violence or if the person doesn’t have a leadership role in a criminal organization.

This development is a very big deal, although it is not especially surprising and the thousands of federal prosecutors who implement this policy around the nation will ultimately determine how dramatically federal charging and sentencing practices change in the months and years ahead.  (And one interesting point for the historical record: the AG Sessions charging and sentencing memo is dated May 10, but it would seem the brouhaha over the Comey firing delayed its official public release.)

Prior recent related post: 

May 12, 2017 at 08:58 AM | Permalink


Sessions needs to just resign already.

Posted by: kat | May 12, 2017 9:15:03 AM

Just what we need: more people in prison for longer times. Maybe certain folks in the White House should be concerned

Posted by: Michael R. Levine | May 12, 2017 9:16:43 AM

Obama might not have done enough in the minds of some, but the ready alternatives as compared to the ideal ones, appear to be worse.

This is not really germane, but fyi, if you don't know:


[Dylan Roof]

It probably is appropriate as a matter of law, but as a matter of policy, I do think it is a stretch. I continue to think this should have been left to South Carolina.

Posted by: Joe | May 12, 2017 10:39:15 AM

Joe, that's an interesting discussion for another post, I would imagine.

Regarding this, it's not surprising. In fact, it is, generally speaking, what they still do. The Sorbanes-Oxley fish case was an example of that where the SG's office said that the policy is generally to not have discretion, but to charge the most serious charge they can prove. Narrow exceptions were exceptions. Obviously, it's directly counter to trends and scholarly opinion, but a "law and order" President appointing a very conservative "law and order" AG should be expected to do something like this. I never understood anyone who thought Pres. Trump's administration would at all support or encourage criminal justice reform.

Posted by: Erik M | May 12, 2017 11:26:42 AM

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