The "Sessions" Memo: Criminal Prosecutions and Sentencing in the Trump Era

Donald Trump was proud to label himself as the “law and order” president. During his campaign he made this part of his rallying cry. As President, he continues to proudly rally for overly- aggressive law enforcement, with very little concern for distinguishing non-violent defendants, or those that are drug addicted or mentally disabled. Nor is overpopulation and abuse in our prisons addressed in his rhetoric or his policies. Frankly, he has yet to express the necessity for fundamental principles like the presumption of innocence or the need to treat defendants with dignity, and sentence them fairly

It is no surprise then that Attorney General Session’s plans for the criminal justice system appear to be as thoughtless as Trump’s. As proof, look no further than a DOJ memo dated May 10, 2017 – better known as the “Sessions Memo.” In it, Sessions sets out marching orders for “each United States Attorney and Assistant Attorney General” to “charge and pursue the most serious, readily provable offense.” To stress his thirst for “law and order,” Sessions goes on to write that “by definition, the most serious offenses are those that carry the most substantial guidelines sentence, including mandatory minimum sentences.” I actually winced when I read this. Boiled down: first priority, charge the most you can, and seek the most severe sentence possible.

DOJ memos are not novel to the Trump administration. President Obama’s Attorney General, Kenneth Holder, issued one too. The difference is that Holder’s position was more humane and sensible. Holder’s memo made clear that federal prosecutors ordinarily charge “the most serious offense…that is consistent with the nature of the defendant’s conduct, and that is likely to result in sustainable conviction.” However, Holder also made clear that charging decisions “must always be made in the context of an individualized assessment of the extent to which particular charges fit the specific circumstances of the case.” Holder also specified that a decision to charge a crime that carries a mandatory minimum sentence – which disproportionately affects minorities - must follow these same principles. In other words, all cases are different. Defendants play different roles; some are less violent than others. It is therefore, a prosecutor’s duty to evaluate the individual and the individual’s conduct before hastily charging the most serious offense with the most substantial guideline sentence. The Holder Memo understood the gray area of criminal prosecution and sentencing, and acknowledged the devastating consequences charging decisions and sentences can have on individuals and their families.

Elections have consequences, though. In the case of Trump and Sessions, the consequences are calamitous. Sessions has all but torn up Holder’s Memo and replaced it with a vengeful, single-minded policy that emphasizes the darkest urge to lock a defendant up and throw away the key – caring little about fairness and equity. To make matters worse, Obama’s re-evaluation of the “war on drugs,” the push to legalize marijuana, and the focus on mass incarceration are now a thing of the past.

But as draconian as the Sessions Memo is, it is not a total loss. The memo also states that “there will be circumstances in which good judgment would lead a prosecutor to conclude that a strict application of the above charging policy is not warranted. In that case, prosecutors should carefully consider whether an exception may be justified.” The question then is: which circumstances lead to an exception? Who decides? And if an Assistant U.S. Attorney applies that exception, does that conflict with the intention of the Sessions Memo?

No sooner than the Memo permits this exception, it nearly takes it away by stating that “in most cases, recommending a sentence within the advisory guideline range will be appropriate.” When I read this I thought immediately of the Chris Rock line, “Anyone who makes up their mind about an issue before they hear the issue is a fool.” How does Sessions, or any prosecutor, know that “in most cases” a guideline sentence is “appropriate” without first knowing about the defendant, understanding his or her background, and evaluating the defendant’s role and the circumstances of the offense? Short answer: you can’t.

Like so many of Trump’s policies, the Sessions memo contains contradictions and applies a cookie cutter approach to complex issues. But the overall message is clear: under Trump and Sessions, criminal defendants will indiscriminately face heavier charges and harsher penalties, with very little concern for making sure the punishment fits the crime. Do not expect Sessions’ Justice Department to address the effect of mandatory minimum sentences, focus on drug addiction or mental illness, or minimize prison overcrowding.

If you would like to email me, please do at steven.brill@sullivanbrill.com. Also, check out my websites at sbcriminallawyers.com and sullivanbrillfirm.com. Like us on Facebook at https://www.facebook.com/sullivanbrill/

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