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May 12, 2017

Some notable first-cut reactions to the Sessions Memo

The Hill already has two articles reporting on some notable reactions to the new Sessions Memo.  The reactions are not surprising, but they are still interesting:

Obama AG slams Sessions for shift to harsher sentencing

GOP senator: Sessions's push for tougher sentences highlights 'injustice'

Eric Holder is the AG referenced in the headline of the first article, and Senator Rand Paul is the one referenced in the headline of the second one. Senators Mike Lee and Tom Cotton also are quoted in the second article, and long time readers of this blog can likely guess the nature of their takes on the Sessions Memo.

Last but certainly not least, Bill Otis has reactions here at Crime & Consequences under the heading "Jeff Sessions Returns DOJ to Sound Charging Policy." Here are choice excerpts (emphasis in original):

This has been reported as "new" guidance, but it's not. It's the return of the "most serious readily provable" standard that governed charging policy during most of my 18-year tenure in the US Attorney's Office, a tenure that ended last century. The policy continued during the George W. Bush Administration.

It was right then and it's right now. It amounts to telling prosecutors to charge what the defendant actually did. This is so obviously correct -- aligning the allegations with the facts -- that I have a hard time seeing any serious objection to it.

It does allow exceptions -- that is, in practice, more lenient charging -- in unusual cases. That too seems obviously correct, together with the Attorney General's caveat that such cases must, indeed, be out of the heartland, and the reasons for leniency should be documented and approved by a more senior AUSA or the USA himself. This prevents inattentive, inexperienced or irresolute AUSA's from doing their own thing (or being bullrushed by an aggressive or smooth-talking defense lawyer).

On its face, this policy is not that much of a change from the one Eric Holder adopted, but there is an important change in emphasis and purpose....

It will be attacked by the Left as likely to produce longer sentences. That's probably so. However, there is a ready mechanism by which such sentences can be avoided: Mr. Nicey might consider quitting the smack business and getting a normal job like everybody else. I'm just not a partisan of the notion that it's always the public that has to change. Instead, in both practical and moral senses, we'll be better off when we insist that it's the criminal who has to change. We don't need less serious charging. We need less crime.

Criminals make choices. We should give them enhanced incentives to make better ones, for them and for us. The Attorney General's directive does just that.

Prior recent related post: 

May 12, 2017 at 12:43 PM | Permalink


"The legal system is an apparatus that is created to secure the interests of the dominant class. Contrary to conventional belief, law is a tool of the ruling class. The legal system provides the mechanism for the forceful and violent control of the rest of the population. In the course of the battle, the agents of the law serve as the military
force for the protection of domestic order. Hence, the state and its accompanying legal system reflect and serve the needs of the ruling class. The primary interest of the ruling class is to preserve the existing capitalist order. This is accomplished ultimately by means of the legal system."

Richard Quinney, "Crime Control in Capitalist Society," in Ian Taylor, Paul Walton, and Jock Young, eds., Critical Criminology (London: Routledge and Kegan Paul, 1975), pp. 192–93, 195.

Posted by: Red Rosa | May 12, 2017 1:03:50 PM

I gather it will also gain some criticism from Libertarians and won't only apply to those in the "smack" business. (See, e.g., the "fish" case cited in a previous thread). OTOH, Rand Paul was referenced, to the degree he is a libertarian.

In fact, some conservatives are concerned with the expansion of the federal criminal law (on this blog, special attention -- at least going by comments -- seem to be applied to sex offenders here), which has been reflected some in certain Supreme Court rulings in the Roberts Court.

What the person "actually did," especially given criminal statutes where using a GPS and so forth (see the Roof opinion I cited in a previous comment) might bring forth a federal prosecution in a case that might otherwise be a local case (one the specific state might choose to handle differently), provides wide discretion to prosecutors. Always has. I appreciate the input of insiders here but am wary of this new policy.

Posted by: Joe | May 12, 2017 1:05:21 PM

Briefly, the opening comment has some truth, but good public policy can try as best as possible to use the law in a more equitable way. Such is at least is the principle behind our own republican institutions.

Posted by: Joe | May 12, 2017 1:07:48 PM

It's obvious that the "red" in "Red Rosa" does not refer to her hair color.

Posted by: TarlsQtr | May 12, 2017 1:37:31 PM

Does the rate of solving a crime have an influence on its deterrence or on its frequency? Is Sessions is asking for more prosecutions, rather than fewer, it will have an effect. One may have a thought experiment of zero prosecution vs 100% prosecution to answer the question.

Posted by: David Behar | May 12, 2017 2:00:17 PM

As has been noted countless times on this blog and elsewhere, the War on Drugs, (pushed by Sessions, Otis, and the like) is an enormous failure. In contrast to the more enlightened countries in Europe, we continue on our insane course of locking up drug pushers, only to have others eagerly take their place Meanwhile drugs are cheaper than ever. prisons become more and more overcrowded. Communities are decimated. How about moving to the medical model? At least give it a try for a couple of years.

Posted by: anon | May 12, 2017 2:11:59 PM

I agree with Anon. But, of course we are dreaming here. Medical model will never happen. Not with moral prigs like Sessions leading us. Didn't he say that folks who use marijuana are bad people. With morons like that leading us, there's nowhere to go but deeper into the hole.

Posted by: Mary | May 12, 2017 2:22:08 PM

Mr Otis is quoted above as follows: "Mr. Nicey might consider quitting the smack business and getting a normal job like everybody else. I'm just not a partisan of the notion that it's always the public that has to change. Instead, in both practical and moral senses, we'll be better off when we insist that it's the criminal who has to change."

Pretty words from Mr. Otis, a white upper class Stanford grad. who never had to face blatant discrimination in finding employment because of the color of his lily white skin, and who never grew up in a neighborhood where there are no jobs, no supermarkets, no decent schools, and no fathers because they are all in prison. Not to mention that the "smack" business is driven by the ferocious and insatiable demand of white folks who just can't seem to get enough of it.

Posted by: Mary quite contrary | May 12, 2017 2:31:20 PM

There are two significant aspects to the discussion of the approach of the Obama and Trump Administrations.

The first is that the "unfairness" of the Sessions approach comes from the "unfairness" of the statutes defining the offense. The names of offenses are just the labels that the legislative branch chooses to put on an offense (as shown by the continued problems that federal courts have with attempts to enhance based on state convictions). The real issues are conduct X authorizing or mandating (depending on the statute) punishment Y. Separating out the punishment aspect, it would be otherwise uncontroversial to say that, if the prosecution can prove that defendant did X, it should charge him with X. The impetus toward a lesser-charge than the actual offense committed comes from the punishment associated with the actual offense committed.

The second and more significant aspect is the separation of powers debate. As we saw in other contexts (especially the immigration context), the duty of the executive branch (whether federal or state) is to faithfully execute the law. Most acknowledge that -- given limited resources -- the government is unable to investigate and prosecute every potential law violation (just try to count the number of traffic offenses that are not caught by your local police on your drive home from work), forcing the government to establish priorities on which types of offenses deserve the most resources. The debate comes over whether that justifies the executive branch or the courts to simply ignore the policy decisions and priorities set by the legislative branch in enacting the applicable statutes. (In other words, it is one thing for the executive branch to decide we are going to shift staff from pursuing those who dump toxic waste in order to pursue those who hire unauthorized immigrants. It's another thing for the executive branch to decide that we are not going to enforce a law because we do not agree with that law.) This memorandum clearly leans on the side of less discretion to under-enforce the law.

Posted by: tmm | May 12, 2017 3:56:03 PM

"Separating out the punishment aspect, it would be otherwise uncontroversial to say that, if the prosecution can prove that defendant did X, it should charge him with X."

If something has no effects, yes, I gather doing it would be of little note. The core point here would be the negative effects of prosecution, thus just laying everything you reasonably can on the defendant might not be "just" in such and such a case.

There has always been much more "law" out there than prosecutions, particularly when it came to certain types of morals crimes. This is touched upon in the second paragraph of the comment. In practice, it is a matter of degree, not "simply ignoring" though that in practice is true in certain cases. The fact such and such a crime has 10 years, another five also doesn't necessarily tell me that the legislative each and every time expects the government to target the 10 year one. They might very well expect some discretion, applying that in the "worst cases."

The "most serious, readily provable offense" rule seems at least in part a matter of executive judgment there.

Posted by: Joe | May 12, 2017 4:43:02 PM

@Joe writes, "The "most serious, readily provable offense" rule seems at least in part a matter of executive judgment there."

Well it is. This is why I see these types of memos as mostly if not exclusively rhetorical. The have value for whatever persuasive value they might have. Call me when a USDA get fired for not enforcing it.

Posted by: Daniel | May 12, 2017 10:09:39 PM

Federal drug sentences time served are approx 3-4 times longer than state charges around here. The feds claim they need the mandatories for breaking cartels etc.

Well then fine, restrict the mandatories to the hugest cases. But the gareden variety drug case, especially the lowest level offenders are the ones getting gammered. Especially from smallville, america, as they have had many charges, but served little jail time, mostly probation. Therefore they have a fat rap sheet, perfect for the feds. Just a while back, An OWI wS considered a violent crime. Where was the Ausa and Judges mind at.
Doesnt take Willey E Coyote Super Genius to figure out, hey what are the requirements for a violent crime. And so it went on and on. I commend the Ussc for their work on getting the guidelines lowered to where they are today.

But, but, the mandatories can rear up and hammer offenders just as they did from the late 89s. Mandatories had a chance to eliminate some of them, but we may if just lost a decade or 2 with Trump and Sessions wanting play tough guy.



Posted by: MidWestGuy | May 12, 2017 11:48:53 PM

Legal policy making, law enacting, philosophies of enforcement or of discretion to not enforce, all represent ghoulish human experimentation, without informed consent, or even follow up assessment of the effectiveness, of unintended consequences, or of utilitarian calculations.

They violate the Helsinki Principles on human experimentation. All are crimes against humanity. Because the lawyer profession is so intensely and uniformly stupid, most of these decision are regulatory quackery. Quackery is fraud. It is a regulatory taking, a violation of due process, and a mass intentional tort, fitting the criteria of strict liability.

Posted by: David Behar | May 13, 2017 12:19:11 AM

The lawyer may verify that all drug dealers are violent by trying to sell some dope in the territory of the drug dealer. The latter will be right over to greet and welcome the lawyer into the neighborhood.

Posted by: David Behar | May 13, 2017 12:23:05 AM

Redskella. You posted the same idiotic quote elsewhere under another name. It was rebutted.

Take away the rule of law. You are in Fallujah, spend all your waking hours on physical survival, and doing nothing else. That argument was settled 30,000 years ago. By 5000 years ago, we had law books and procedure.

Ruling class is a job like any other. They have to make systemic decisions without enough information or certainty. They deserve wealth and privilege when they do a good job. They deserve to be killed when they fail, as the lawyer profession is doing big time, today. Doing well means people live in peace; economy is growing; people are satisfied with the fairness. Lawyers make 99% of policy, so are 100% at fault for our problems. The schools that trained them, the Top Tier of law schools should be closed by National Guard cannon fire. Get rid of these failed institutions. Putting the grads of Life Skills class into policy positions would serve us far better. Hey lawyers, your profession really stinks. It in utter failure. You take our $trillion and return nothing of value.

Posted by: David Behar | May 13, 2017 12:34:49 AM

Mary. What are you, a lawyer?

Go to the poorest, blackest neighborhood in our country. Be quiet. Pass your subjects. Get to Votech in high school. Come out, make $75,000 at age 19, a salary I doubt white guy Bill Otis did not see until 10-20 years older.

What the hell is wrong with you? Get to the age of Prof. Berman, with your own HVAC business, installing air in skyscrapers, and make 10 times his salary. Do you know why? HVAC has great value to the public. Lawyering is totally toxic to the public, and requires fumigation. One has to spray for reptiles.

Posted by: David Behar | May 13, 2017 12:43:10 AM

I consider the length and severity of sentencing to be controversial as a factor in deterring crime, and in dropping its rate.

What is settled is the effect of the chance of being prosecuted. So prosecute none, and the rate shoots up, engaging even normal, moral people. Prosecute 100%, the crime disappears, such as the policy to pursue kidnapping.

We will need technology. Replace the worthless lawyer with prosecution robots. Cameras on every corner. Facial recognition. Prosecute the identified defendant. Sentencing is to be done by another neutral robot. Deduct the fines from the accounts of the defendants. If not assets can be seized, apply 20 lashes, for every instance of law breaking.

Posted by: David Behar | May 13, 2017 12:54:35 AM

Prof. Berman. When you are fair and intelligent, you deserve praise. Thank you for returning the thoughts of Bill Otis by your extensive and straight quotation. He was the only licensed lawyer in the criminal law business to advocate for crime victims here. Fed is a licensed lawyer, but not in this specialty. I am sincere in my admiration and praise for your fairness in this post.

Posted by: David Behar | May 13, 2017 6:21:19 AM

Doug, Supremacy Claus can't stop. Seven inane comments out of eighteen. Including "worthless lawyers." "Lawyering is totally toxic to the public, and requires fumigation."

Pull the plug. Thanks


Posted by: bruce cunningham | May 13, 2017 7:56:56 AM

Bruce. You are getting obsessed. Try to ignore me. If you object to something, try to specify, and to avoid personal insult.

Posted by: David Behar | May 13, 2017 8:40:05 AM

Both Sessions and Bill Otis are white Southern men with family connections to white supremacists. Enough said. Otis in particular is deplorable. A Stanford education wasted on a cruel warped man who devotes his life to purring more folks in cages for longer periods. Just pathetic. There is no excuse

Posted by: [email protected] | May 13, 2017 11:41:45 AM

It should be disclosed that Behar is a moron, who was unable to get admitted to an accredited law school. He was a Trump supporter and self-hating Jew. He is not qualified to comment on any issue requiring the slightest nuance of thought. He is a sadist with nothing better to do than to advocate for harsher punishment of non-whites.

Posted by: [email protected] | May 13, 2017 11:55:22 AM

Doug, respectfully, you are not offering a Hyde Park corner soapbox for anyone who chooses to say anything they want. This is a serious blog whose purpose is to assist serious people.

Supremacy Claus's vitriolic insults don't bother me. However, I am concerned that they might deter some younger lawyers from participating on the blog. That would be a shame. You owe nothing to S.C. He is taking advantage of you.

you asked him to leave and he ignored you. Do us all a favor and pull the plug.


Posted by: bruce cunningham | May 13, 2017 2:03:23 PM

If young lawyers tell me David is deterring them from participating, I will tell them they will encounter in their careers folks a lot more disturbing than David. And David is not taking advantage of me, he is enjoying the fact that I do opt to allow anyone to say nearly anything in this arena. My problem is not that David uses the soap box that I offer, but rather that he too often gets up to say the same old thing in the same old way. He has been warned about that, and we will see if he is a man of his word by either going away (as he offered to do) or dialing it back. I fear he cannot help himself and so I may be compelled to help him. But I would much rather not. Life is too short to police what others have to say, and I refuse to waste much time doing so here or elsewhere.

Posted by: Doug B | May 13, 2017 4:04:32 PM

Ah, the Resolute Oarsman. His argument in effect is one that is made every day by prosecutors all over the country at sentencing. But he thinks he is being profound and saying something that no one else has said. He is starting to remind me of Obama, beautiful words that mean nothing.

The problem with the War on Drugs is that while drugs flow north, dollars flow south. There are many laws on the books that are intended to stop the flow of money, but they are never enforced. Occasionally, a big bank gets caught laundering drug or terrorist money but is allowed to enter into a non-prosecution agreement and pay a big fine and promise never to do it again. The fine isn't paid by the culpable officers out of their own pockets, but out of corporate earnings, which means it is paid by the shareholders. A few careers are ruined, but no one goes to jail.

The Resolute Oarsman would have more credibility when he carries on about street criminals, if he would pontificate a little about our elite criminals.

Posted by: Fred | May 13, 2017 9:29:56 PM

Bruce. Thoughts?

I am not interested in this blog on this subject, but in Facebook/Twitter/Snapchat.

If you own a home, the deed line probably is in the middle of the street. The sidewalk is private property. For example, fail to remove the snow, the city may fine you. If a pedestrian slips, you get sued, and your insurance has to pay.

You may exclude people from your dining room, as the essence of a property right. You may not exclude people from your sidewalk, based on anything. Those invitees have an absolute right of way. You may not exclude people based on viewpoints, within the limits of time, manner and place. I may choose to blare hateful speech all day in front of your house until a noise ordinance says I have to stop, usually 9 PM. I may choose to do so in nasty manner, at the funeral of a young veteran. (Snyder v. Phelps, No. 09-751, an 8-1, self evident decision). I may make open, blatant death threats (Elonis v US).

So when Facebook bans me, It is not banning me from its dining room, as it has a right to, but from its sidewalk. It has no right to do so, not even if I agreed to that in unconscionable and voidable Terms of Use.

Posted by: David Behar | May 14, 2017 10:53:44 AM

Mike/John. Is this you?


Posted by: David Behar | May 14, 2017 11:00:23 AM

Doug. Please, do not ban Bruce for his repetitive posts.

Posted by: David Behar | May 14, 2017 11:07:20 AM

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