Former U.S. attorneys and criminal defense lawyers on Friday criticized a new Department of Justice directive instructing federal prosecutors to pursue the most serious charges that they can prove.
The new policy, outlined Wednesday in a one-and-a-half page memo from U.S. Attorney General Jeff Sessions, would strip prosecutors of the discretion afforded them under the Obama administration and lead to longer sentences and more defendants behind bars, the attorneys said.
“This Attorney General has taken away the discretion of professional prosecutors to determine what sentence serves justice in any given case,” Barry J. Pollack, president of the National Association of Criminal Defense Lawyers, said in a statement. “Instead, prosecutors are now required in every case mindlessly to seek the maximum possible penalty.
According to the memo, prosecutors should “charge and pursue the most serious, readily provable offenses,” and any deviation from a strict application of the charging policy would need to be documented and approved by a U.S. attorney or assistant attorney general. The deputy attorney general will be tasked with overseeing and clarifying the new policy, according to the document.
The most serious offenses, Sessions said, are those that carry the “most substantial” guideline sentences, including mandatory minimums.
“This policy affirms our responsibility to enforce the law, is moral and just, and produces efficiency,” Sessions wrote. “This policy fully utilizes the tools Congress has given us.”
The move was widely seen as an unraveling of the August 2013 “Holder memo,” in which then-U.S. Attorney General Eric Holder directed prosecutors to conduct an “individualized assessment” of charges in the “specific circumstances” of a case.
On Friday, the National Association of Assistant United States Attorneys praised the move as a necessary step toward combating drug and violent crime.
“The new guidance announced by Attorney General Sessions will restore the tools that Congress intended U.S. assistant attorneys to have at their disposal to prosecute drug traffickers and drug trafficking enterprises,” the group’s president, Lawrence Leiser, said in a statement. “The tools are in accord with what Congress has authorized and deemed necessary to fight crime and assure public safety.”
But Melinda Haag, who served five years as U.S. attorney for the Northern District of California under President Barack Obama, said the DOJ’s new course would force prosecutors into pushing for harsh sentences, regardless of the nature of the offender and the crime.
“It once again takes away discretion for federal prosecutors to seek appropriate sentences for low-level offenders,” she said.
“Bottom line, what’s going to happen is this is going to put a lot of people in jail,” said Thomas A. Bergstrom, a former assistant U.S. attorney in the Western and Eastern Districts of Pennsylvania from 1970 to 1975 who now practices white-collar criminal defense in Philadelphia.
Bergstrom, with the firm Buchanan Ingersoll & Rooney, said the impact would especially be felt in the plea bargaining process, where prosecutors will now be less likely to agree to a lesser sentence.
“It looks like all U.S. attorneys are going to be under the thumb of the attorney general,” he said. “I think the chances of the assistant attorney general agreeing to step it down is not a very high percentage.
It wasn’t clear, however, how the DOJ would enforce the “most readily provable” standard for charging or how the department would review cases to ensure compliance with the directive, said Kent Alexander, a former U.S. Attorney for the Northern District of Georgia under President Bill Clinton.
“It’s [a] big change in policy with equally big escape hatches. I don’t think we’ll know the full effect of the memo until we see how each U.S. Attorney handles requests for departures and variances. I’m guessing DOJ will be giving the U.S. Attorneys a quite a bit more guidance — official and unofficial — down the road,” Alexander said in an email.
Absent further guidance from Sessions or Deputy Attorney General Rod Rosenstein, prosecutors will still have discretion in deciding which charges they have the best chance of proving to a jury within their own jurisdictions, Bergstrom said.
“That’s the parachute for the prosecutors. Unless the assistant attorney general wants to review the entire file, who’s going to challenge that decision?”
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