Back to the Future

By Michael E. Clark and Amanda L. Bassen

On May 12, 2017, Attorney General Jeff Sessions issued a memorandum, dated May 10, 2017 (the “Sessions Memorandum”), ordering stricter charging and sentencing policies to the Department of Justice (“DOJ”) in conducting federal prosecutions.  The Sessions Memorandum announced that the DOJ must charge and pursue “the most serious, readily provable” offenses.  Attorney General Sessions defined such offenses as those carrying the greatest sentence under the United States Sentencing Guidelines (“USSG”), including sentences carrying mandatory minimum terms of incarceration. 

While the guidelines are couched as new directives to DOJ attorneys, they are in fact a reversion back to the polices from President George W. Bush’s administration, which called for more uniform punishments and harsher charges, including those carrying mandatory minimum sentences. This (renewed) policy, however, is broader than that under the Bush administration in that it allows for greater discretion by United States Attorneys and Assistant Attorney Generals in carrying out charging decisions that deviate from these policies.  Any exceptions, however, including recommendations for a departure or variance from a sentence within the advisory sentencing guideline range, require supervisory approval with documentation of the underlying rationale in the case file.

The Sessions Memorandum reverses the Obama administration’s efforts to reduce penalties for low-level, non-violent drug offenders, and explicitly rescinds two Memoranda previously issued by former Attorney General Eric H. Holder Jr., the Department Policy on Charging Mandatory Minimum Sentences and Recidivist Enhancements in Certain Drug Cases, dated August 12, 2013 (the “2013 Memorandum”) and Guidance Regarding § 851 Enhancements in Plea Negotiations, dated September 24,  2014 (the “2014 Memorandum”).  The 2013 Memorandum called for a case-by-case analysis of the individual circumstances in charging drug crimes and urged prosecutors to omit drug quantities from charging documents where appropriate to avoid the automatic trigger of harsh mandatory minimum sentences.  In a similar vein, the 2014 Memorandum provided that the government should not seek an enhancement pursuant to 21 U.S.C. § 851 solely based on a criminal defendant’s exercise of his or her right to a jury trial, and should not be used as a negotiating tool to induce a defendant to take a plea.

The Sessions Memorandum reflects a marked shift from the Obama administration’s criminal justice policies, which sought to reserve the most severe mandatory minimum penalties for “serious, high-level or violent drug traffickers” and ease penalties for low-level, non-violent offenders.  It has already received wide criticism as setting the nation back in time, including from civil rights groups and Republican lawmakers who see these policies as accentuating existing problems in the criminal justice system and only serving to undo recent progress on sentencing reform.  It remains to be seen, however, how individual prosecutors and United States Attorneys’ Offices across the country interpret and implement these new guidelines in the upcoming months.