Attorney General Jefferson Beauregard Sessions III explained in a WaPo op-ed why he reversed a 2013 Holder memo to prosecutors by directing them to seek the highest provable charge that will trigger mandatory minimum sentences.
First, it is a core principle that prosecutors should charge and pursue the most serious, readily provable offense. This policy affirms our responsibility to enforce the law, is moral and just, and produces consistency. This policy fully utilizes the tools Congress has given us. By definition, the most serious offenses are those that carry the most substantial guidelines sentence, including mandatory minimum sentences.
He leaves open the door for the exercise of discretion, with supervisor approval. This is the front end of the prosecutorial system. On the back end, he informs prosecutors to go for the max as well.
Second, 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. In most cases, recommending a sentence within the advisory guideline range will be appropriate. Recommendations for sentencing departures or variances require supervisory approval, and the reasoning must be documented in the file.
Judges have the authority, under Booker, to ignore the back-end direction if they so choose. They can’t ignore the mandatory minimums. Iowa Senior District Judge Mark Bennett has openly argued against them and complained how they tie his judicial hands. And that’s the point, that his hands are tied.
Sessions uses his op-ed to explain why he issued his guidance, to sell his position.
Drug trafficking is an inherently violent business. If you want to collect a drug debt, you can’t, and don’t, file a lawsuit in court. You collect it by the barrel of a gun. For the approximately 52,000 Americans who died of a drug overdose in 2015, drug trafficking was a deadly business.
His opening paragraph sets the tone. Some believe the first sentence to be true, and it is, in some instances, true. What it is not is availing, since there was nothing in the prior guidance that prevented a prosecutor from being as harsh as he wanted to be when the circumstances warranted it. Then again, if drugs were legal, people could sue to collect a debt.
Sessions then lapses into a theme that permeates his op-ed by referencing 52,000 people (whether or not they’re Americans is neither known or shown, but that’s a small detail) who died of overdose. The problem is that the number is indiscriminate, mostly opioids (~33,000) from legally prescribed drugs. It’s not that the number isn’t a fact, but the fact doesn’t reflect what it’s offered to reflect.
Someone will do the heavy lifting of deconstructing the myriad cherry-picked dots Sessions connects that are quasi-false, unrelated, assumptive or just plain wrong. The amount of effort necessary to pick apart bad data goes beyond my interest here. Whoever has the patience to parse each fact and explain why it doesn’t say, mean or do what Sessions says it does has my appreciation. Bless you for your patience.
Rather, this is a play to the groundlings who, like me, don’t have the patience to fact-check his op-ed, but unlike me, are willing to accept the words, assumptions and connections proffered by the AG at face value. After all, Jeff Sessions wouldn’t lie, would he?
As U.S. attorney general, I have a duty to protect all Americans and fulfill the president’s promise to make America safe again.
Not that it’s unsafe, despite Sessions gaming the law of small numbers without revealing the fallacious lack of connections between percentage shifts in particular locales with their cause. Then again, everybody plays the end game these days, announcing an outcome and expressing outrage that it’s wrong without putting the effort into thinking how and why it happened, and considering that bad outcomes aren’t necessarily connected to bad causes. The folksy aphorism is “where there’s smoke, there’s fire.” Nancy Grace made a career off that phrase, so why not Sessions?
Defenders of the status quo perpetuate the false story that federal prisons are filled with low-level, nonviolent drug offenders. The truth is less than 3 percent of federal offenders sentenced to imprisonment in 2016 were convicted of simple possession, and in most of those cases the defendants were drug dealers who accepted plea bargains in return for reduced sentences.
He’s right here, you know. It’s not that those low-level, non-violent drug offenders don’t deserve better than one-size-fits-all justice, but that it’s a myth that prisons are filled to the brim with these defendants. Just as Sessions sells fear of drug-dealer killers, advocates for prisoners sell the tale of the poor schmuck. In doing so, they have unfortunately skewed the narrative away from what matters, that perpetually longer sentences for the others bears no connection to any of the legitimate purposes for sentence. So the mid-level, occasionally violent offender still gets life plus cancer. Or, more accurately, the non-drug offender, who is assumed to ever more prison because reasons.
What Sessions is dredging up are the long-held assumptions of an uninformed public who use “common sense” to believe that Menckian solutions ought to work, despite the fact we’ve been using them for decades and drugs are more available, and less expensive, than ever, while we make Somalia blush in its failing to keep up with our crime and punishment rate.
But here’s the kicker. As foolish and baseless as Sessions’ effort might be,and it most assuredly is, he’s right about one big, no, huge, thing: Congress has passed laws, stupid awful laws, and he has done nothing more than tell his prosecutors to faithfully enforce them. It’s impossible to be princpled while criticizing government by bureaucrat in one agency, then applauding it in another.
That Jeff Sessions plays to the simplistic crowd isn’t surprising. If he realizes it, he’s disingenuous. If not, he’s just stupid. But he’s not the guy who enacts the laws that do the damage. That job belongs to Congress, and they’ve done it well. As with so many of the seemingly intractable systemic problems we face, we ignore the cause and blame the effect.
Sessions sucks, but he’s just the attorney general. It’s Congress’ job to stop making bad law that becomes the subject of dueling AG memos. Not that Sessions gets a free pass in his execution of the laws, but that we’ve put bad law in his hands to execute.
Has the word “inherently” changed meanings recently? If drug trafficking were “inherently” violent, Pfizer and Merck would be having shootouts in hospital corridors. Trafficking in drugs is incidentally violent because someone decided to structure our laws to make it that way.
This is why you aren’t the AG. You word nit-picker.
SHG,
As you know, but your readers may not, the idea of charging the most serious readily provable offense is central to the underlying purposes of the Sentencing Guidelines–(1) avoidance of unwarranted sentencing disparity and (2) transparency in sentencing. Attorney General Thornburgh (1988 to 1991) long ago reached this charging understanding with the Sentencing Commission. Everyone realized that without such a charging policy the Guidelines would never work as intended and wildly disparate and opaque sentencing would continue.
One may well have a rigorous and intellectually honest disagreement with Guidelines and also think Sessions is a politically motivated dolt. But one cannot honestly question the propriety of charging the most serious readily provable offense, assuming, of course, that the AG is supposed to act in accordance with the existing law including the Sentencing Guidelines.*
Finally, while Congress has the power to enact statutory minimums, such statutes are, as you point out, the central problem. These laws frustrate rather than further the Guidelines. I agree entirely with you when you write, “It’s Congress’ job to stop making bad law . . . .” But, good luck with fixing that.
All the best.
RGK
* AG Holder, on the other hand, issued a sentencing memo that was, to be kind, a blatant appeal to the feelz zeitgeist in order to make political points on the left.
As you know, Judge, I’ve never been a fan of the guidelines, considering them an arbitrary, baseless sham from the outset masquerading as a uniform metric to the judiciary to create sentencing disparities by substituting traditional judicial voodoo by committee voodoo. Unfortunately, the generation of judges who cut their teeth during the dark ages between Mistretta and Booker believe they reflect lengths of time that have some historic, if not quite legitimate, cred. Kidz.
But post Booker, and apart from elevated norms created by the Guidelines, we are free to argue our case. But for the mandatory minimums, which arose when politicians ran out of stupid things to use to pander to the oversold fearful populace to sell their re-election campaign. This is beginning to sound a bit negative. Sorry about that. Happy father’s day, Judge.
SHG,
And to you as well!
All the best.
RGK
Judge, I appreciate the many posts you’ve done on the topic of sentencing, but if one feels that the sentence length are far too long, is “avoidance of unwarranted sentencing disparity” a good thing if it only yields longer sentences?
Keith,
Your question is a good one. My answer may be insufficient, but here it is.
Like it or not, Congress has the responsibility of setting ranges within statutes for the judge to pick from. Now, let’s ask, as an example, given a range of between 0-20 years in prison for mail fraud (18 U.S.C. § 1341) do you want federal judges across the nation to sentence similarly situated defendants to more or less similar terms or do you prefer judges to exercise discretion in a way that deviates from the norm followed by a majority of other judges?
For me, even sentences that are too long are preferable, if applied across the board, to disparate sentence based upon a judge’s feelz. I don’t trust myself nor any other judge to sentence within broad ranges without guidance. We are simply not well trained enough to do so.
As a bit of background, I was a young lawyer when depending upon the judge you drew refusal to register for the Vietnam draft could get you 5 years in prison or probation. What made it worse was that the standard of review on appeal was “abuse of discretion.” That is, you could not count on the Court of Appeals to fix things because the standard of review got in the way.
Kids sentenced by a particular judge in Missouri got hammered while kids elsewhere in the Eighth Circuit received a sentence that was significantly less harsh. Reviewing these cases as a law clerk for a judge on the Eighth Circuit between 1972 and 1974 made a big impression on me. That impact has stayed with me ever since.
All the best.
RGK
Do you think that the sentencing guidelines actually decrease disparity between similarly situated defendants? It seems like similarly situated would not control for race, income, or gender, as I suspect that the federal system interfaces happily with selective enforcement of drug or other alleged societal violations by local police. So, bias in = bias out.
Say what you will about the logical purity of Holder’s memo, but its signalling effects spawned a decline in drug prosecutions and incarceration lengths.
So, given that I am not particularly convinced by the integrity of any one institution, that seems like a reasonable and effective substantive move (beyond the “feelz” as you malign them).
I am also not clear why uniformity for uniformity’s sake is a good explanation for why we might prefer a system where everyone gets 5 years versus a system in which it’s geographically delineated whether you get 0 or 3 years.
I agree that systems require rules/guidance, but I’m not clear how that gets you to justify the current rubric beyond defending them as a historical accident. My understanding was that the guidelines were intellectually beholden to certain anti-racists, like the Quakers, but adopted and perverted as part of a theory of incarceration as deterrence (like James Wilson’s Thinking About Crime). But I was only born in 1988 so you know something something millennial.
While you ask some decent questions, which Judge Kopf can answer if he doesn’t think his initial comment here already provided the answers, your final paragraph would do far better if you first learned what you were talking about rather than offer your misguided anon “understanding.”