Today, Attorney General Jefferson Beauregard Sessions III reversed a long standing Justice Department of situational appropriate charging in criminal cases and established a new charging and sentencing policy for federal prosecutors, directing them to “charge and pursue the most serious, readily provable offense” and then “disclose to the sentencing court all facts that impact the sentencing guidelines or mandatory minimum sentences” and “seek a reasonable sentence under the factors in 18 U.S.C. § 3553.” If a prosecutor seeks a departure or variance, the prosecutor must obtain approval from a supervisor and “the reasoning must be documented in the file.”
The Attorney General stated that any earlier policy contrary to his directive is rescinded, specifically noting Department Policy on Charging Mandatory Minimum Sentences and Recidivist Enhancements in Certain Drug Cases (August 12, 2013); and Guidance Regarding § 851 Enhancements in Plea Negotiations (September 24, 2014).
The 2013 DOJ policy refined DOJ practices for nonviolent, low-level drug offenders and noted that “mandatory minimum and recidivist enhancement statutes have resulted in unduly harsh sentences and perceived or actual disparities.”
The 2014 DOJ policy discouraged the filing of 21 U.S.C. § 851 enhancements, stating that “[a] practice of routinely premising the decision to file an § 851 enhancement solely on whether a defendant is entering a guilty plea, however, is inappropriate and inconsistent with the spirit of the policy.”
According to Sessions, federal prosecutors who no longer follow the prior policies and adhere to this new policy “will meet the high standards required of the Department of Justice for charging and sentencing.”
The Sentinel considers this one-size-fits-all scorched-earth approach to criminal justice nearly as disturbing as Congress’ long successful attempt to strip federal judges of sentencing discretion (as a part of the Comprehensive Crime Control Act of 1984’s creation of mandatory sentencing and inflexible Sentencing Guidelines – said stripping later reversed by the Supreme Court after more than a decade of prosecutor driven sentencing decisions).
The entire reason for having locally controlled federal prosecutors, local United States Attorneys, appointed by the President and confirmed by Congress, is to reasonableness and accountability in criminal investigations and the exercise of prosecutorial discretion, and the Sentinel fears that this attack on that discretion is but the first shot in what will turn into AG Session’s war on reasonableness and rationality in federal criminal justice.