The Department of Justice announced Friday the end of former Attorney General Eric Holder’s controversial policy preventing certain offenders being charged with crimes that trigger mandatory minimums.
The office of Attorney General Jeff Sessions sent a memorandum titled “Department Charging and Sentencing Policy” to all 93 U.S. Attorney’s offices around the country. As the nation’s leading federal law enforcement official, the Attorney General has the authority to direct charging policy for all DOJ employees. This “Sessions Memo” expressly voids the August 2013, ‘Holder Memo‘ by then-Attorney General Holder that governed charging decisions until now.
Most controversially, the Holder Memo forbade federal prosecutors from pursuing charges that would trigger mandatory minimum prison sentences for certain categories of drug offenders, even when prosecutors felt those charges were justified by the facts. Specifically, those caught even with large amounts of drugs were to be charged with less serious offenses that did not trigger mandatory minimums if the defendant was “non-violent,” not a member of a drug cartel, did not have a long criminal history, and met certain other requirements.
It is important to note that, unlike some state systems, most defendants charged with “non-violent” drug crimes in the federal criminal justice system are not arrested with personal use or even small-scale sale quantities. The Holder Memo became relevant only when federal mandatory minimums for drug offenses kicked in. According to U.S. Sentencing Commission materials the smallest amounts needed to trigger these minimum 10-year sentences were one kilogram of heroin (approximately 10,000 doses), five kilograms of Cocaine, 280 grams of crack cocaine, or a metric ton of marijuana.
Proponents saw the Holder Memo as a “safety valve” for “low-level” drug offenders. The memo itself cites the need to reserve mandatory minimum sentences for the highest level of drug offenders and the prosecutor’s role in doing so given federal case law that requires judges follow mandatory minimums enacted by Congress when criminals are convicted under those statutes.
Opponents of the Holder Memo felt it demanded federal prosecutors ignore the will of Congress and deliberately circumvent the sentencing structure imposed by the legislature. In this view, U.S. Attorneys were prevented from charging offenses they could readily prove and instead were instructed to conceal from juries the actual amounts of drugs defendants were alleged to have possessed or sold.
In any event, the Holder Memo was a radical departure from the previously governing “Ashcroft Memo,” named for its putative author George W. Bush-era Attorney General John Ashcroft, which demanded federal prosecutors must, in all criminal cases, charge the most serious offense they had a strong likelihood of proving beyond a reasonable doubt at trial.
For example, most people charged with murder could also be charged with manslaughter. Most charged with armed robbery could also be charged with theft. And most of those charged with selling 10 kilograms of drugs could also be charged for selling 1 kilogram of drugs. The Ashcroft Memo, from which Eric Holder departed, forbade U.S. Attorneys from ever charging the lesser included offense and always charging the most serious readily provable offense.
Friday’s Sessions Memo reinstates this policy as the default instruction for all federal prosecutors effective immediately.
The Sessions Memo, however, is not a mere restatement of the Ashcroft Memo. While the duty to charge the most serious offense is re-imposed on line prosecutors, the memo recognizes the need for prosecutorial discretion in certain charging decisions. Only high-level supervisors such as the 93 U.S. Attorneys and the 12 Assistant Attorneys General may approve deviation from the “most serious offense” requirement. This allows a degree of autonomy and discretion for individual offices not available in the Ashcroft years.
This discretion is perhaps most important in securing the cooperation of criminals to bring down larger criminal enterprises. “Charge-bargaining,” whereby prosecutors agree to charge defendants with less harsh sentencing guidelines in exchange for cooperating with the authorities in other investigation, is a powerful “carrot” available to some state prosecutors. The Sessions memo will re-introduce that tool to the federal justice system, but only in the hands of high-level DOJ officials and only when they’ve made their reasoning for doing so clear to the relevant court.