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Undoing Obama era guidance advising federal prosecutors to pass on charging low-level drug offenders, Attorney General Jeff Sessions ordered prosecutors in his Justice Department to "charge and pursue the most serious, readily provable offense" under the law. What this shift means in practice is that federal defendants may now face "the most substantial guidelines sentence, including mandatory minimum sentences," which were frowned upon during previous AG Eric Holder's tenure.
Sessions called his directive "moral and just" and advised that "[a]ny inconsistent previous policy of the Department of Justice relating to these matters is rescinded, effective today." What will the new rules mean for prosecutors and defendants?
In 2013, former AG Holder issued sentencing guidelines designed to correct "unfairness in the justice system" by avoiding harsh imposition of mandatory minimum sentences for minor drug offenders and encouraging alternatives to incarceration for non-violent, elderly offenders. Sessions' memo, dated May 10, reverses that course, asking prosecutors to seek the most serious criminal charges and request the toughest mandatory sentences. While acknowledging that prosecutors have discretion in charging decisions, Sessions advised that "any decision to vary from the policy must be approved by a United States Attorney or Assistant Attorney General ... and the reasons must be documented in the file."
The guidance does not distinguish between serious and low-level drug crimes, and considering prosecutors will often already seek harsher punishments for more serious crimes, the new directives are expected to affect low-level offenders the most.
Once a defendant is convicted, federal judges are often bound by sentencing statutes to impose specific sanctions. While federal sentencing guidelines were ostensibly an effort to remove judicial bias and treat each defendant equally, they have effectively removed judicial discretion when it comes to avoiding mandatory sentences that appear out of sync with the crime involved.
Sessions' memo also seeks to impact sentencing even further, by requiring prosecutors to "disclose to the sentencing court all facts that impact the sentencing guidelines or mandatory minimum sentences," and by requiring documented reasoning and supervisory approval for any departure from the new guidelines.
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