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May 12, 2017

Misreporting of the Sessions Memo and the challenge of nuance in prosecutorial charging policies

I have already had the pleasure of speaking with a couple of thoughtful members of the media about the new charging and sentencing memorandum released today by Attorney General Jeff Sessions (basics here), and those conversations have already reinforced my sense of how challenging it is to fully and fairly assess the import and impact of the "Sessions Memo" in our modern sound-bite world. But while I can understand and sympathize with media members struggling to fully understand and contextualize the Sessions Memo, I felt compelled to blog my frustration with media efforts like this one from the New York Daily News that in their headline and lead get the basic story fundamentally wrong:  

Attorney General demands prosecutors seek max sentences for drug offenders

Attorney General Jeff Sessions is taking the war on drugs nuclear, ordering federal prosecutors across the country to pursue the longest prison sentences possible for drug offenders and others in a reversal of Obama-era policies.

This is just flat out wrong, as the very text of paragraph four of the short Sessions Memo makes plain (with my emphasis added): "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."

I think it fair (though still an incomplete short-hand) to talk about the Sessions Memo demanding prosecutors to seek tougher or harsher or longer sentences, but it is dangerously wrong to assert that the Sessions memo requires pursuit of "max sentences" or "the longest prison sentences possible."  Indeed, it seems that AG Sessions very much believes that his Memo actually provides even "more play in the joints" than pre-Holder era prosecutorial guidelines.  This is evidence by the text of this speech he gave today in New York talking about his new memo, which includes these excerpts:

Charging and sentencing recommendations are bedrock responsibilities for any federal prosecutor.  And I trust our prosecutors in the field to make good judgements.  They deserve to be unhandcuffed and not micro-managed from Washington.   Rather, they must be permitted to apply the law to the facts of each investigation.  Let's be clear, we are enforcing the laws Congress passed – that is both our fundamental mission and constitutional duty.

Going forward, I have empowered our prosecutors to charge and pursue the most serious, readily provable offense.  It means we are going to meet our responsibility to enforce the law with judgment and fairness.  It is simply the right and moral thing to do.  But it is important to note that unlike previous charging memoranda, I have given our prosecutors discretion to avoid sentences that would result in an injustice.

Prior recent related post: 

May 12, 2017 at 12:30 PM | Permalink


Imagine the frustration of practitioners when "journalists" who share their law school alma mater commit the very sin you describe: https://www.buzzfeed.com/chrisgeidner/ohios-new-execution-process-ruled-unconstitutional-halting-u?utm_term=.ei8keWqe9#.ma8ZwjBwY.

Posted by: Public Servant | May 12, 2017 1:43:19 PM

There are people lower in morals and intelligence than the lawyer profession. Convicted child serial rapists and killers, and journalists. No story has ever been accurate, in the history of mankind. One is basically reading fantasy novels. That makes two fraudulent activities immunized by the constitution, the press and religion.

The David Duke posts stories deriding Jews and blacks. It does not lie about them. It is hate speech propaganda by selection of adverse articles. One may fairly say, Duke is obsessed and has gone unhinged in his hate. Absolutely no difference between that website and all media outlets. That methodology applies to this blog, an anti-crime victim hate speech propaganda outlet. I will find 1000 pro-criminal and pro-lawyer procedure and employment post for each pro-victim posts. It has also driven pro-victim commentators out, having zero tolerance of any dissent from its propaganda.

A black, feminist, professor of Black studies and I were trying to find exceptions. I suggested she make it an assignment for her graduate students, find a balanced media outlet. She said, "I will call it, Mission Impossible." Very difficult exercise. The sole answer we could come up with was C-SPAN. Its director, Charles Lamb, described their careful counting of stories to make them equal in number for each side of an issue.

The closer the person is to the facts of a story, the greater frustration with the inaccuracies, the made up material, and the lack of balance.

The journalist have a Code of Ethics. One provision requires getting both sides of a story. That makes lack of balance in a story a per se deviation from standards. Such a deviation should be deterred with tort liability. Fraud and lying should not be immunized by the constitution. The Supreme Court should rule for defamation if it violates the Code.

A new provision must be added to the Code. Stop the bias by selection of stories. All but one outlet would be in violation.


Posted by: David Behar | May 13, 2017 6:13:54 AM

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