Open Thread: AG Sessions Channels Ghosts of Justice Past

Jeff Sessions issued a memo to the United States Attorneys directing them to charge the highest provable offense possible. What this means is that the charging decision dictates the outcome under the regime of mandatory minimums. If this seems like deja vu all over again, that’s because it is. This was the protocol under Attorney General John Ashcroft.

In the interim, Attorney General Eric Holder issued a memo providing for greater exercise of prosecutorial discretion. As should be obvious, the problem with addressing the outcomes of “prison nation” and the draconian “War on Drugs” by memo is that the next guy gets to write a memo of his own.

In this case, Sessions, contrary to some suggestions, hasn’t quite done something new and horrible, but returned to the old and horrible days of Ashcroft.

“We are returning to the enforcement of the laws as passed by Congress, plain and simple,” Sessions said. “If you are a drug trafficker, we will not look the other way, we will not be willfully blind to your misconduct.”

He’s got a point. It’s a terrible point, but a point. Congress enacted draconian laws because voters love their drug warriors so much, and these remain the laws of the land. If Congress, in its “wisdom,” makes laws, who are prosecutors to ignore them?

While we may have been close to reform, even if exceptionally tepid reform, it didn’t happen despite bipartisan support (and anything the Koch Brothers like is obviously unacceptable to progressives). For all of President Obama’s claims to success, limited though they may be, it was by executive fiat, and thus susceptible to being undone by fiat as well.

Is this horrifying and exhausting? Is this much ado about nothing. Is this this what we get when the reform administration fails to accomplish anything and the drug warrior returns to power? This will be an open threat, if you want it. Please try to stay on topic and not reflect the deepest thoughts of the criminally insane.

29 thoughts on “Open Thread: AG Sessions Channels Ghosts of Justice Past

  1. Christopher T Van Wagner

    This is not a good thing. As a Madison, WI AUSA in the OCDETF unit (ie, drugs) in Madison from 91-94, I can tell you that the Ashcroft/Barr/Thornburgh memo and its fall-out caused more unnecessary imprisonment of young minority men than any other component of federal criminal policy. It wore on me to see 19-year-old man-children sentenced to five years in the federal pen for a bag of crack simply because they were the lower rung ones who got caught. Certainly the DOJ under Obama had its Holder issues, but one thing the Holder/Obama DOJ did do was give prosecutors the power NOT to seek mandatory minimums. Not all offices took that incentivized bait, but many did. One can only hope that the lack of specifics in this newest version of the “Memo that Launched the Drug War For Real” will give any remaining “thinking” federal prosecutors the ability to NOT seek mandatory minimums. Oh. Wait. They were all fired…

  2. Billy Bob

    Our open threat is that Alfred E. Neuman be named to replace his lookalike, Jeff Sessions. We anticipate that Sessions will be “fired” sooner rather than later. What did Sessions look like when he was a teenager/young man? Any pictures out there? No, we’re not making fun of Sessions, but–ahem–he is one-of-a-kind. Amusing to us Northern and Mid-Western folk. He talks so funny, it’s hard to concentrate on what he’s actually saying.
    Well, so far he’s no worse than any of the previous recent AGs. Some worse than others. It’s a thankless job. You cannot please everybody. The bigger they are, the harder they fall. Good piece by former AG William Barr on Comey’s firing in yesterday’s WaPo: The inside scoop!

  3. JAV

    The inertia of a machine built long ago, manned by the well-meaning, misguided, and blind to the carnage it wreaks.

  4. B. McLeod

    We’re going to need a bigger prison system. This could be the source of all the jobs Trump has promised.

  5. Adam

    I’ve long felt that the way to fix the war on drugs is to rip white upper middle class teenage girls from their homes and sentence them to 15 years for possession of pot; I.e., apply the law as written without prejudice. Whether this will actually result in that (the law as written without prejudice bit) remains to be seen but seems unlikely.

    1. Rachel M.

      Yup. A quick and easy fix which only requires that we lock even more people up.

      While we’re putting people behind bars, I wonder what the various statutes of limitations are in the various jurisdictions, and if we can imprison a good chunk of Congress based on what they did in college….

      Wishful thinking, I know. ¤¤¤

  6. Iris Wong

    “Is this this what we get when the reform administration fails to accomplish anything and the drug warrior returns to power?”

    Yes. It’s also what we’d get if the reform administration had accomplished everything with respect to executive-department policies but failed to overturn legislation, and the drug warrior returns to power. Write your Congress-member and demand… oh, snap, that won’t work either: signing statements.

  7. Richard G. Kopf


    Holder’s memo was a complete rejection of the Guidelines. It was an overtly a political statement intended to curry favor with progressives. Setting to one side Holder and Obama’s preference for rejecting reality in order to espouse feelz, that’s fine if one believes the Guidelines are crap. I don’t share that belief. If one truly want to avoid sentencing disparity then charging the most readily provable offense, even if it invokes the nutty statutory minimums, is a must.

    All the best.


    1. B. McLeod

      I see what you did there. If judges can’t have discretion, prosecutors can’t either. For the exact same reasons.

      1. JAV

        And in doing so remind people the key to long term reform is voting in a Congress willing to change the laws.

          1. B. McLeod

            Well, all the people going in would be worried, if somebody didn’t have the key.

        1. B. McLeod

          Right. That’s true both as to the ongoing sentencing issues and getting people out of lockup other than through random, case-by-case clemency. This really is an issue Congress needs to wake up and sort out, before we have half the citizens guarding the other half.

    2. Jeff Davidson

      Hello Your Honor –

      Thank you for your participation here and in other social media outlets. It is invaluable to those of us on the outside of the legal system. IANAL (therefore IANAJ) so I am asking if the most readily provable offense is the same thing, in practice, as the highest provable offense possible.

      Thanks again and best wishes.

      1. Richard Kopf


        The answer is “no.” In common language, the “most readily provable” offense does not mean the highest charge one might conceivably bring but the charge that is consistent with the hard facts and the most reasonable inferences that may be drawn therefrom.


        Meth dealer Frank is a local man. As an adult, he soon realized that working in the packing plant sucked. His passion was hunting pheasants that abound in the wilds of Nebraska. With over 11 million made since 1950, the Remington 870 has undoubtedly accounted for more pheasants than any other shotgun. Frank inherited one from his father when dear old dad got drunk one night and drove his Chevy off the levee.

        The Central Nebraska Safe Streets task force had eyes on Frank for some time. After several controlled buys, they serve a warrant on Frank’s dilapidated Prairie Style home in Grand Island. In the basement, the type with an earthen floor, they find what they suspected they would find. That is a kilo of a mixture or substance of meth hidden under the furnace.

        In Frank’s upstairs bedroom, they find ten thousand dollars of cash in $100 bills under his bed in a lightly locked metal box. In the closet, they find the unloaded Remington 870 and a hunting vest with 10 shotgun shells together with other items of wearing apparel.

        Frank’s source of supply was probably somebody from the packing plant who is connected in Mexico, but Frank is too damned scared to rat out his source. While he knows he is going to prison, he wants to make sure that he won’t get the crap kicked out of him when he hits the yard. So, he makes it clear from the get-go that he will demand a jury trial.

        The prosecutor charges possession with intent to distribute the kilo of meth. That invokes the 10-year statutory minimum under 21 U.S.C. section 841. The base offense level under the Guidelines is 30. Assume Frank has one felony burglary conviction and a criminal history score of II, the Guideline range, in that case, is 108-135 months in prison assuming he goes trial and is convicted, but the 10-year statutory minimum makes the bottom end 120 months.

        However, the “most readily provable” offense requires more. The prosecutor also converts the $10,000 to an equivalent quantity of meth at wholesale in Grand Island thus upping the base offense level to a level 32. Once again, with a criminal history score of II, the Guideline range is 135 to 168 months in prison assuming he went to trial and was convicted.

        Since there is no hard evidence that the shotgun was used for anything having to do with the drug crime, the prosecutor doesn’t charge an 18 U.S. Code § 924(c)(1)(A) gun count with the five-year consecutive statutory minimum. Nor does the prosecutor seek a sentencing enhancement under USSG Section 2D1.1(B)(1)–possession of a firearm during the commission of a drug offense -under the Guidelines.

        Now, understand that the prosecutor might have argued that the shotgun was used to protect the cash and the dope. But that would not, in my opinion, be the most readily provable offense since the inference is weak. The prosecutor rightly decides not to add a section 924(c) count solely to try to coerce a plea.

        To reiterate, the “most readily provable offense” is the offense or offenses that are most consistent with the true facts and the reasonable inferences that may be drawn therefrom. I hope this helps.

        All the best.


  8. Boffin

    So the orange-haired vulgarian usurper is showing off his dictatorial ways by appointing justices and judicial officers who are committed to strictly construing the laws as written by congress. Got it.

  9. Matthew S Wideman

    Maybe if we stop pretending that we can mitigate these awful laws, we can get together as a country and change them.

    I am a firm believer that the truth (in this case the following of the law) will burn away the belief amongst many people that Obama reformed prosecution procedures.

    1. Billy Bob

      We are a firm believer as well, but… not as optimistic as you appear to be,… that the curtain will be lifted.
      As for DLM’s comment above, we like his train of his thought and choice of words, but are having a difficult time deciphering his meaning–in a short tweet. The implied/rhetorical answer is No, but do we not know? Only the Nose knows! Hit us with your best shot. You are smart guy; we know you can do it, DLM, there in Heidelberg. Please fill in the blanks for us.

  10. Allen

    I guess those drug dealers are running amok and no one told us, I knew there was a bad moon rising. With lawyers, guns, and money you can get almost anything done regardless of what Sessions says.

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