Sessions’ charging memo underscores need for Congress to pass reform

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Attorney General Jeff Sessions’ memorandum instructing federal prosecutors to “charge and pursue the most serious, readily provable offense” against defendants signals a desire to return to a tough-on-crime stance. From the perspective of criminal justice reform, the most daunting aspect of these developments is a likely resurgent dependence on mandatory minimums.

As has been noted by John Malcolm, a criminal justice expert and director of the Heritage Foundation’s Edwin Meese III Center for Legal and Judicial Studies, reinstatement of stricter charging and sentencing policies is fully within the attorney general’s authority. We’ve seen it before from Attorney General Richard Thornburgh, who issued his own guidelines in 1989 requiring strict enforcement of all provable offenses. In the years since, there’s been back-and-forth directives from Thornburgh’s successors Janet Reno, John Ashcroft, Eric Holder and, now, Sessions.

But over that interim, experts have gathered evidence against mandatory minimums, finding that heavy use of these sentencing laws failed to reduce drug use or recidivism. Mandatory minimum sentences are fixed prison terms applied to specific crimes, which can range from five years to life imprisonment. They strip judges of the ability to use their own professional discretion to determine sentencing based on the facts at hand.

The aim of mandatory minimums during the height of the 1980s crack epidemic was, of course, to target drug kingpins and cartel leaders, in order to improve public safety. Prison populations surged, but it was primarily due to an increase of low-level offenders. With prisons now bursting at the seams and calls for the construction of newer prisons to house an ever-growing population of prisoners, taxpayers have had to shoulder the costs.

The most notable portions of Sessions’ memo are where he instructs that “the most serious offenses are those that carry the most substantial guidelines sentence, including mandatory minimum sentences,” which marks a deviation from the “smart-on-crime” approach under Holder. Sessions’ memo would ensure the U.S. Justice Department “fully utilizes the tools Congress has given” the agency.

But to the extent that it is Congress that provides the DOJ tools to enforce federal laws, Congress itself needs to reassess those tools. Sen. Rand Paul, R-Ky., has taken that exact strategy. Alongside Sen. Patrick Leahy, D-Vt., Paul has introduced the Justice Safety Valve Act in the Senate, while Reps. Thomas Massie, R-Ky., and Bobby Scott, D-Va., have done the same in the House. The legislation authorizes federal judges to provide more fitting sentences outside of a mandatory-minimum requirement.

During a press call Wednesday, Paul noted that momentum for change is likely to build if more members introduce more criminal justice reform bills. While acknowledging that reform advocates face an “uphill battle,” he also indicated that he is “having conversations with people” within the Trump administration willing to listen.

The call to enforce harsher charging and sentencing methods is a serious concern, especially the goal to revive the one-size-fits-all use of mandatory minimum sentences. However, seeking ways for Congress to set the tone and dictate what tools are available for judges and parties at the DOJ is currently the most effective way to remedy this recent course of events. It’s checks and balances at its finest.


Image by Brad McPherson

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