Tag Archives: sessions memo

Did Holder’s Charging Policy Really Matter? – Update for May 22, 2017

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

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THE NUMBERS TELL A DIFFERENT STORY

The media continued its feeding frenzy last week about Attorney General Jefferson Beauregard Sessions’ memo rolling back the Obama kinder-and-gentler drug charging and sentencing policies.

sessionsmemo170522Numbers that DOJ cited last year suggest former AG Eric Holder’s Smart on Crime Initiative had a substantial effect on the percentage of federal drug offenders facing mandatory minimums. According to Sentencing Commission data, the share of federal drug offenders subject to mandatory minimums has fallen steadily from 62% of all defendants in 2013 to less than 45% in 2016.

But as Benjamin Disraeli put it, there are three kinds of lies: “lies, damn lies, and statistics.” It turns out the Sentencing Commission number includes drug defendants who did not actually receive mandatory minimums. Many of them were subject to mandatory minimums, but escaped because they gave the feds “substantial assistance” or got “safety valve” treatment.

liesdamnlies170522A Federal Public and Community Defenders analysis, however, did toke those other forms of relief into account. That study found “6,780 defendants convicted under drug statutes carrying a mandatory minimum penalty… received some form of relief from the mandatory minimum penalties. All but 868 of those defendants were already eligible for relief, and judges gave 467 of them sentences longer than the mandatory minimums, which suggests the new rule would not have helped them.”

Out of the 6,780 defendants, only 8% “would likely have received a lower sentence if the Holder memo had been in effect in 2012.” The analysis suggests that the vast majority of drug offenders who seem to have benefited from the Holder 2013 memo — thousands each year — did not actually receive shorter sentences as a result of the policy change.

Deal170216The biggest change in sentencing resulting from the Holder memo is the one few are talking about. By cutting the number of drug defendants eligible for mandatory minimums, the new approach puts less pressure on defendants to cooperate with the feds. Ratcheting up the penalty will again increase the number of defendants willing to make a deal.

Reason.com, How Many Drug Offenders Benefited From the Holder Memo That Sessions Rescinded? (May 17, 2017)

– Thomas L. Root

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Sessions Channels His Inner Ashcroft – Update for May 15, 2017

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

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SESSIONS GETS TOUGH ON DRUG CRIMES
Attorney General Jeffrey Sessions
Attorney General Jeffrey Sessions

Attorney General Jeffrey Sessions last week walked back Eric Holder’s 2014 DOJ order to go easy on drug offenders, telling federal prosecutors to “charge and pursue the most serious, readily provable offense” in drug cases, even when that would trigger mandatory minimum sentencing. The new policy cancels the Obama administration’s attempts to pull back on harsh sentencing strategies, which had produced a huge growth in prison populations, restoring the take-it-to-the-limit policies from a 2003 memo written by George W. Bush AG John Ashcroft.

The shift highlights the primary role US Attorneys and their minions play in setting federal sentences. The Atlantic said, “Prosecutorial discretion, like gravity, is the unseen force that binds the American criminal-justice system together. Federal prosecutors have a broad array of legal mechanisms at their disposal with which they can ratchet a defendant’s punishment higher or lower, depending on which charges they file and end with plead deals, making the AUSA the most influential actor in the federal system.”

lawandorder161219Sessions’ memo drew universal Democrat condemnation, and caught immediate heat from conservatives, too. Sen. Rand Paul (R-Kentucky) said mandatory minimum sentences “have unfairly and disproportionately incarcerated too many minorities for too long.” Sen. Mike Lee (R-Utah), one of the conservative leaders in advocating changes to the criminal justice system, lamented, “To be tough on crime we have to be smart on crime. That is why criminal justice reform is a conservative issue.”

The Sessions memo, not wholly unexpected, nevertheless comes at a time when bipartisan support has been quietly building in the Senate for an overhaul of federal sentencing. Judiciary Committee Chairman Chuck Grassley (R-Iowa) and Minority Whip Dick Durbin (D-Illinois) have proposed pushing a modified version of last year’s Sentencing Reform and Corrections Act.

“This policy shift flies in the face of the growing bipartisan consensus that we need to reduce—not increase—the length of prison sentences for nonviolent drug offenders,” Durbin said in a statement Friday.

justicereform161128An organization supported by conservative businessmen Charles and David Koch is also criticizing the Sessions memo. “We favor a different approach which requires changing some of the existing federal laws,” Freedom Partners Chairman Mark Holden said in a statement Friday afternoon. “Fortunately, there are already federal reform bills from last year that have broad bipartisan support that will address this issue. These reforms are consistent with those enacted by many states the past 10 years.”.

Yesterday, conservative blog Hot Air railed against the Sessions memo, arguing that federal law is so bloated that “some people don’t even know they’ve committed a crime because of how many rules and regulations there are on the books. Justice reform in states like Texas and Georgia have shown crime rates and expenses go down when reforms are enacted. The people leading the charge for justice reform aren’t cop haters, but want there to be alternatives to keep those who aren’t hardened criminals from becoming them. Sessions is wrong and should reconsider his horrible memo which won’t help anyone, except maybe prison builders and his own department’s budget. Congress can stop this by enacting sentencing reform, but only if they’re willing to act.”

His hands may end up as tied as were his predecessor's.
His hands may end up as tied as were his predecessor’s.

The Republican response, even more than that from across the aisle, suggests that the Trump administration may soon learn what the Obama Administration realized to its chagrin. It may be able to make a number of changes on the Executive side, such as rolling back federal sentencing reform, increasing federal prosecutions for drug and immigration-related offenses, and expanding federal private prisons. But Trump can no more end criminal justice reform than Obama was able to end mass incarceration from the White House.

Los Angeles Times, Sessions restores tough drug war policies that trigger mandatory minimum sentences (May 12, 2017)

– Thomas L. Root

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