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Federal prosecutors will be seeking tougher drug sentences

On Behalf of | May 18, 2017 | Criminal Defense

Attorney General Jeff Sessions issued a policy memo last Friday directing U.S. Attorneys to seek the harsh, mandatory minimum sentences available under federal drug laws. Previously, Obama-era Attorney General Eric Holder had urged federal prosecutors to avoid the harshest sentences for street-level users and other nonviolent offenders.

The Obama Administration, noting that several states had passed marijuana decriminalization laws, issued its policy memo in 2013. When prosecuting someone for mere drug possession and absent violence or a long criminal history, U.S. Attorneys were urged to leave the quantity of drugs involved out of their sentencing recommendations. This simply served to remind judges that they already have the authority to ignore Congress’s mandatory sentencing laws.

Obama and Holder also believed that the mandatory minimum sentences applied to drug crimes were fueling the mass incarceration crisis without reducing illegal drug use or the violence associated with it. “Long sentences for low-level, non-violent drug offenses do not promote public safety, deterrence, and rehabilitation,” Holder commented on the 2013 memo.

The most serious crimes are whatever Congress says they are

Attorney General Sessions is much more of a hard liner. In the past, he has warned states against de-criminalizing marijuana, warning that doing so would expose them not only to unnamed repercussions from the federal government but also to increasing violence. “Experts are telling me there’s more violence around marijuana than one would think and there’s big money involved,” he said in February.

“It is a core principle that prosecutors should charge and pursue the most serious, readily provable offense,” Sessions wrote in his new policy memo. In reality, decisions about which of the available charges should be used are fundamental to prosecutorial discretion and cannot easily be made via cookie-cutter policies. There is a great deal of strategy involved, as well as balancing the scales of justice.

“By definition, the most serious offenses are those that carry the most substantial guidelines sentence, including mandatory-minimum sentences,” he adds. In other words, whatever Congress decides are the most serious criminal offenses are the most serious criminal offenses, even if most people disagree.

Last year, Congress tried to change the way it defines and punishes drug offenses, but then-Senator Sessions was instrumental in blocking the bi-partisan bill.

Sessions’ policy memo directly reverses Holder’s. It orders the U.S. Attorneys to include the quantity of drugs and “in all cases seek a reasonable sentence under the factors” laid out in the federal sentencing guidelines — no matter how harsh.