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April 6, 2018

AG Sessions announces new "zero-tolerance policy" for immigration offenses ... which could mean ... (a lot or no) more fast-track sentencing?

This new Department of Justice press release reports on a notable new announcement from the Attorney General. Here is the substantive heart of the release:

Attorney General Jeff Sessions today notified all U.S. Attorney’s Offices along the Southwest Border of a new “zero-tolerance policy” for offenses under 8 U.S.C. § 1325(a), which prohibits both attempted illegal entry and illegal entry into the United States by an alien. The implementation of the Attorney General’s zero-tolerance policy comes as the Department of Homeland Security reported a 203 percent increase in illegal border crossings from March 2017 to March 2018, and a 37 percent increase from February 2018 to March 2018 — the largest month-to-month increase since 2011.

“The situation at our Southwest Border is unacceptable. Congress has failed to pass effective legislation that serves the national interest — that closes dangerous loopholes and fully funds a wall along our southern border. As a result, a crisis has erupted at our Southwest Border that necessitates an escalated effort to prosecute those who choose to illegally cross our border,” said Attorney General Jeff Sessions. “To those who wish to challenge the Trump Administration’s commitment to public safety, national security, and the rule of law, I warn you: illegally entering this country will not be rewarded, but will instead be met with the full prosecutorial powers of the Department of Justice. To the Department’s prosecutors, I urge you: promoting and enforcing the rule of law is vital to protecting a nation, its borders, and its citizens. You play a critical part in fulfilling these goals, and I thank you for your continued efforts in seeing to it that our laws — and as a result, our nation — are respected.”...

Today’s zero-tolerance policy further directs each U.S. Attorney’s Office along the Southwest Border (i.e., Southern District of California, District of Arizona, District of New Mexico, Western District of Texas, and the Southern District of Texas) to adopt a policy to prosecute all Department of Homeland Security referrals of section 1325(a) violations, to the extent practicable.

The one-page memo sent from AG Sessions to all federal prosecutors along the Southwest border is available at this link, and the title of this post flags the big follow-up question that I have.

As federal sentencing fans know, the large number of immigration cases historically prosecuted in border districts led to the creation of a special kind of sentencing adjustment (known as a "fast-track" departure) in order to speed case-processing through sentence reductions. If, as this AG Sessions memo suggests, prosecutors on the border are now going to be bringing even more immigration prosecutions, I would expect to see even more "fast-track" departures. But the memo above speaks of bringing the "full prosecutorial powers of the Department of Justice" to those "illegally entering this country." That language would arguably suggest that federal prosecutors ought not anymore be agreeing to lower sentences for offenses under 8 U.S.C. § 1325(a) now that we are to have a "zero-tolerance policy."

April 6, 2018 at 04:21 PM | Permalink


I think in the past, some southwest border districts have declined to prosecute some of the referred 8 USC 1325 cases - I think that's what the memo is advising - in other words, no more voluntary departures, but instead, full prosecution. That being said, I still think they will be able to fast track them, as long as they meet the criteria set forth in 5K3.1 and the PROTECT Act.

Posted by: atomicfrog | Apr 9, 2018 9:03:01 AM

I share your basic assessment of the point of this memo here, atomicfrog, but I wonder if you share my view that "fast-track" sentencing discounts are somewhat in tension with a commitment to apply "the full prosecutorial powers of the Department of Justice."

Posted by: Doug B. | Apr 9, 2018 10:43:43 AM

That sentence does give me pause as well - but maybe I am reading it with more hope that the gov't will still file the required motion for a downward departure. It would seem that you could have unwarranted sentencing disparities with defendants before and after this memo too. I also imagine the Court could still vary downward to take into account the previously requested downward departures. It will be interesting to watch and see how this ultimately gets played out.

Posted by: atomicfrog | Apr 9, 2018 10:53:10 AM

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