Tag Archives: sessions memo

Lies, Damn Lies & Statistics: the AG Speaks – Update for June 21, 2017

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

Attorney General Jefferson Beauregard Sessions III
Attorney General Jefferson Beauregard Sessions III

A little more than a week ago, Attorney General Jefferson Beauregard Sessions III took to the pages of the Washington Post to defend his May 10th tough-on-crime memorandum.  The reviews are in, and they are not pretty.

In 2013, former Attorney General Eric Holder ordered federal prosecutors to decline to pursue mandatory minimum sentences for drug offenders who didn’t use violence, were not leaders or organizers of the drug operation of which they were a part, had no ties to large-scale drug operations or gangs, and had no significant criminal history. If the drug defendant rang all of those bells, Holder directed that “prosecutors should decline to charge the quantity necessary to trigger a mandatory minimum sentence.”

As for sentencing, Mr. Holder directed that prosecutors be “candid with the court, probation, and the public as to the full extent of the defendant’s culpability, including the quantity of drugs involved in the offense and the quantity attributable to the defendant’s role in the offense, even if the charging document lacks such specificity. Prosecutors also should continue to accurately calculate the sentencing range under the United States Sentencing Guidelines. In cases where the properly calculated guideline range meets or exceeds the mandatory minimum, prosecutors should consider whether a below-guidelines sentence is sufficient to satisfy the purposes of sentencing as set forth in 18 U.S.C. § 3553(a).”

Now look at how Mr. Sessions interprets those passages:

“In 2013, subject to limited exceptions, the Justice Department ordered federal prosecutors not to include in charging documents the amount of drugs being dealt when the actual amount was large enough to trigger a mandatory minimum sentence. Prosecutors were required to leave out objective facts in order to achieve sentences lighter than required by law. This was billed as an effort to curb mass incarceration of low-level offenders, but in reality it covered offenders apprehended with large quantities of dangerous drugs. The result was that federal drug prosecutions went down dramatically — from 2011 to 2016, federal prosecutions fell by 23 percent. Meanwhile, the average sentence length for a convicted federal drug offender decreased 18 percent from 2009 to 2016.”

Ah, where to start?

violence160110How about with Mr. Session’s implication that the 2013 Holder memorandum led to an increase in violent crime? Is that so? Well, just as Bill Clinton famously said that it depends of what the meaning of ‘is’ is,” the first question has to be that it depends on the meaning of “violent crime.”

Mr. Sessions says that drug trafficking is “violent crime.” But the FBI does not. The G-men (and -women) issued the violent crime statistics that Mr. Sessions says show an uptick in violent crime in 2015 (back to 2012 levels) The AG’s right about that much, but among the mayhem included in the FBI’s definition of “violent crime” – murder, rape, robbery and aggravated assault – you won’t find drug trafficking. So the Holder memorandum – which primarily addressed drug trafficking – did not lighten up on the kind of “violent crime” that Mr. Sessions cited in the statistic.

Sure, you say, but did not he argue that drug trafficking led to such violent crime, citing the need to use a gun to collect drug debts because the courts were closed to people trading in illegal commodities? He did do so, but if you want to be completely fair, possession of a gun is just as important to a gang shootout over drug debts as is the debt itself. So consider this:

  • In 2014, the first full year the Holder memorandum was in effect, the average drug sentence was 57 months. This means that someone beginning that average sentence on January 1 would not be released until about January 1, 2018. In other words, shorter sentences beginning in 2014 could not account for an increase of violent crime in 2015.
  • While we’re at it, note that Mr. Sessions blames the 2013 Holder memorandum for the fact “that federal drug prosecutions went down dramatically — from 2011 to 2016, federal prosecutions fell by 23 percent. Meanwhile, the average sentence length for a convicted federal drug offender decreased 18 percent from 2009to 2016.”
§ 924 tacks a few years onto a sentence for carrying a gun during a violent or drug crime.
The statistics say the Feds are already doing more to get guns off the streets.

It’s pretty basic science to observe that when you’re measuring the effect of a certain event, you measure the change that occurred after the event, not the change that occurred before and after the event.

Several commentators have pointed to other logical legerdemain Mr. Sessions employed in his screed. Jacob Sullum at Reason.com noted that

The violence associated with the distribution of currently banned drugs does not demonstrate that the business is inherently violent, any more than the violence associated with liquor distribution during alcohol prohibition showed that selling whiskey is inherently violent. The violence is a product of the prohibition policy that Sessions avidly supports, as he himself implicitly concedes in the next two sentences.

“If you want to collect a drug debt,” Sessions writes, “you can’t, and don’t, file a lawsuit in court. You collect it by the barrel of a gun.” And why is it, exactly, that drug dealers cannot avail themselves of the same legal, peaceful methods of dispute resolution that today’s alcohol merchants routinely use? Only because their business remains illegal, malum prohibitum, just as the booze business was from 1920 to 1933.

Radley Balko at the Washington Post notes that “if pot retailers in Colorado, Washington and the other legalization states need to collect on a debt today, they do what any other retailer does. They use the legal system. If Sessions had his way, pot dealers in these states would to back to collecting debts ‘by the barrel of a gun’.” So the answer to this lessening of violence is to shut down legal marijuana sales, firing up the black market once again?

drugdealer160922Mr. Sessions’ answer to that is that even legal, the sales of marijuana is a “deadly business” because of the “approximately 52,000 Americans who died of a drug overdose in 2015.” But as Mr. Balko points out, “about 18,000 of those deaths  involved prescription opioids, which are legally available. About 8,000 involved benzodiazepines, which are also available legally. Both of those types of drugs are made by pharmaceutical companies, prescribed by doctors and sold by pharmacies. Does Sessions believe those are all inherently violent industries? The Journal of the American Medical Association estimates that 88,000 people die each year from alcohol-related deaths. Does Sessions believe that Anheuser-Busch, Diageo and E & J Gallo run “deadly businesses”? What about the 480,000 people who die each year from smoking? Is tobacco a “deadly business”?”

About 125 years ago, Benjamin Disraeli is said to have observed that “there are three kinds of lies: lies, damned lies, and statistics.” Mr. Sessions’ Washington Post defense of his get-tough-on-crime memo scores a hat trick.

Washington Post, Here are all the ways Jeff Sessions is wrong about drug sentencing (June 20, 2017)

Reason.com, Read Jeff Sessions’ Utterly Illogical Defense of Tough Drug Sentences (June 20, 2017) 

Human Rights Watch, Q & A: US Attorney General Jeff Sessions’ Policy Change on Sentencing (June 20, 2017)

– Thomas L. Root


Easter Bunny, Unicorns, and Low-Level Drug Offenders Don’t Exist! – Update for May 31, 2017

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


Dogbite160314The debate over the May 10th release by Attorney General Jefferson Beauregard Sessions III of a new directive that effectively cancels the 2014 Holder memorandum continues to rage. Predictably, federal prosecutors love the Sessions Memo. Dog bites man!

Last week, to the shock and amazement of absolutely no one, the National Association of Assistant United States Attorneys – the private association of AUSAs that helped sink federal sentencing reform last year by arguing that there is no such thing as a nonviolent drug offender – now argues that there’s no such thing as a low-level drug offender in the federal system, and that all the Sessions Memo does is to force prosecutors to carry out the will of Congress.

“There’s nothing… other than Eric Holder’s own personal opinion of what he considered to be a low-level offender, that provides that we should ignore the law,” Steve Wasserman, NAAUSA treasurer, told reporters last Thursday. He argued that the law as written by Congress already includes several “safety valve” provisions, and the discretion given to senior prosecutors under the Sessions Memo already provides ample avenues for sparing the truly deserving from long terms in prison.

The mandatory minimum sentences that sentencing reform advocates and their supporters in the media oppose, he said, apply only to weights that are atypical of personal use or small-scale dealing. Besides, even when mandatory minimums do cut in, NAAUSA argued, that “doesn’t necessarily mean that the person initially charged with the mandatory minimum is going to end up with the mandatory minimum sentence. In fact, only about 13% of our federal prisoners are serving mandatory minimum sentences and the reason for that is that even though we may charge, the individual may meet the safety valve requirement… or they may be someone who is willing to cooperate with us … that allows us to go back to the court… and explain that this is someone who has provided us with what we call ‘substantial assistance’ which allows the court to reduce the mandatory minimum.”

bling170531What NAAUSA is really saying is that the Sessions Memo once again makes it open season on black defendants. In an amazingly candid admission, Larry Leiser – a current federal prosecutor and NAAUSA president – the president of the group and a current prosecutor, told reporters on a conference call last Thursday that the Sessions Memo will let AUSAs aggressively prosecute drug crimes committed by people “wearing heavy gold and chains and hot cars as a result of their participating in the distribution of these drugs, as opposed to going out and earning an honest living.”

When a reporter braced Leiser, asking whether the remark could be construed as racist, Leiser responded, “It’s intended to be just the reality that unfortunately there are many people in the minority communities that are caught up in this terrible blight of drugs.”

Sessions’ resumption of the “get tough” policies that reigned before the 2014 Holder Memo comes as The Economist again published a withering critique of the American system of incarceration. The magazine reported that Barack Obama’s reform “caused a modest reduction in the number of federal prisoners (who are about 10% of the total). Donald Trump’s attorney-general, Jeff Sessions, has just torn it up. This month he ordered prosecutors to aim for the harshest punishments the law allows, calling his new crusade against drug dealers ‘moral and just’. It is neither.”

The Economist observes that “a ten-year sentence costs ten times as much as a one-year sentence, but is nowhere near ten times as effective a deterrent. Criminals do not think ten years into the future. If they did, they would take up some other line of work. One study found that each extra year in prison raises the risk of reoffending by six percentage points. Also, because mass incarceration breaks up families and renders many ex-convicts unemployable, it has raised the American poverty rate by an estimated 20%.”

pros170531Unfortunately, the problem – whether under Obama or Trump or any of their predecessors – is simply this: DOJ is run by prosecutors. “Despite an obvious conflict of interest,” former AUSA and law professor Mark Osler writes, “the Department of Justice evaluates clemency petitions, runs federal prisons, decides what forensic evidence to introduce in federal cases, and advises the president on criminal justice reform. And make no mistake — prosecutors dominate the agency, with the 93 United States Attorneys playing the leading role in setting policies across a range of issues and career prosecutors running most of the divisions.”

A building full of prosecutors, Osler argues, will instinctively push back against criminal justice reforms, regardless of whether a president is hostile to reform or is as progressive as was Obama. Osler notes that while “it seemed President Obama was sincerely committed to reforming federal criminal law, his results were disappointing. And though some of this failure can be blamed on a recalcitrant Congress, that excuse only goes so far. A close examination of Obama’s record shows that many of the administration’s reforms were subverted by the DOJ, not Congress.”

Nowhere is this more evident than in the position of NAAUSA, whose members are current criminal division line AUSAs. “We at the federal level don’t prosecute ‘low-level drug offenders’,” Wasserman declared, but rather only people in the trafficking business.

In other words, Reason’s Jacob Sullum notes, “you can’t be a low-level drug offender if you participate in distribution. Hence the phrase ‘low-level drug dealer’ is, according to Wasserman, oxymoronic.”

unicornbunny170531NAAUSA’s position on the issue is sophomoric, yet unsurprising from a prosecutorial mindset. There is no distinction between someone who becomes addicted to opioids because of an injury, supplying his or her habit by selling extra pills, and the leader of a gang selling heroin on the streets of an inner city and protecting its business with guns and violence. If you sell, you’re a trafficker, and all traffickers are high-level and violent. As Sullum argues, “it is possible to draw distinctions among people convicted of trafficking, based not only on the amount of drugs involved but also on the role the offender played. A courier or street dealer might participate in an operation that handles a large quantity of drugs, but he is still on a low level compared to the people running the operation.”

While NAAUSA denies that any federal drug offenders are “low-level” or “non-violent,” at the same time it argues the law “already provides ample avenues for sparing the truly deserving from long terms in prison.” The avenue is principally sentence reductions for defendants who provide “substantial assistance” to the authorities or who qualify for the statutory “safety valve” (which lets qualifying nonviolent, low-level drug offenders avoid mandatory minimum sentences) It must be hard for NAAUSA to posit such a claim while at the same time denying that such things as “low-level” or “non-violent” drug trafficking defendants exist.

Breitbart.com, Federal Prosecutors Hit Back at Media Criticism of Sessions Sentencing Memo (May 29, 2017)

The Daily Caller, Federal Prosecutor Says DOJ’s New Focus On Drug Crimes Will Target People Wearing ‘Heavy Gold And Chains’ (May 25, 2017)

Economist, America’s prisons are failing. Here’s how to make them work (May 27, 2017)

Mark Osler, The Problem with the Justice Department, The Marshall Project, (May 31, 2017)

Jacob Sullum, Federal Prosecutors Say They Never See Low-Level Drug Offenders, Reason.com (May 30, 2017)

– Thomas L. Root


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.


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


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.

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