Misreporting of the Sessions Memo and the challenge of nuance in prosecutorial charging policies
I have already had the pleasure of speaking with a couple of thoughtful members of the media about the new charging and sentencing memorandum released today by Attorney General Jeff Sessions (basics here), and those conversations have already reinforced my sense of how challenging it is to fully and fairly assess the import and impact of the “Sessions Memo” in our modern sound-bite world. But while I can understand and sympathize with media members struggling to fully understand and contextualize the Sessions Memo, I felt compelled to blog my frustration with media efforts like this one from the New York Daily News that in their headline and lead get the basic story fundamentally wrong:
Attorney General demands prosecutors seek max sentences for drug offenders
Attorney General Jeff Sessions is taking the war on drugs nuclear, ordering federal prosecutors across the country to pursue the longest prison sentences possible for drug offenders and others in a reversal of Obama-era policies.
This is just flat out wrong, as the very text of paragraph four of the short Sessions Memo makes plain (with my emphasis added): “prosecutors must disclose to the sentencing court all facts that impact the sentencing guidelines or mandatory minimum sentences, and should in all cases seek a reasonable sentence under the factors in 18 U.S.C. § 3553.”
I think it fair (though still an incomplete short-hand) to talk about the Sessions Memo demanding prosecutors to seek tougher or harsher or longer sentences, but it is dangerously wrong to assert that the Sessions memo requires pursuit of “max sentences” or “the longest prison sentences possible.” Indeed, it seems that AG Sessions very much believes that his Memo actually provides even “more play in the joints” than pre-Holder era prosecutorial guidelines. This is evidence by the text of this speech he gave today in New York talking about his new memo, which includes these excerpts:
Charging and sentencing recommendations are bedrock responsibilities for any federal prosecutor. And I trust our prosecutors in the field to make good judgements. They deserve to be unhandcuffed and not micro-managed from Washington. Rather, they must be permitted to apply the law to the facts of each investigation. Let’s be clear, we are enforcing the laws Congress passed – that is both our fundamental mission and constitutional duty.
Going forward, I have empowered our prosecutors to charge and pursue the most serious, readily provable offense. It means we are going to meet our responsibility to enforce the law with judgment and fairness. It is simply the right and moral thing to do. But it is important to note that unlike previous charging memoranda, I have given our prosecutors discretion to avoid sentences that would result in an injustice.
Prior recent related post: