The Justice System: Sessions Memo Equals Tougher Charges and Sentences

The Justice System is changing.  Attorney General Jeff Sessions issued a memo to federal prosecutors last month implementing a new approach as they evaluate what crimes to charge and sentences to pursue.  Although ultimate sentencing discretion remains with the Court, the government’s position has an impact. 

Reminiscent of the “Ashcroft Memo” that was effective during my days as an Assistant United States Attorney in Detroit, the two-page “Sessions Memo” is brief, but significant. Its stated goals are to “enforce the law fairly and consistently,” by directing federal prosecutors in two ways. First, to “charge and pursue the most serious, readily provable offense.” The memo goes on to explain, “the most serious offenses are those that carry the most substantial guidelines sentence, including mandatory minimum sentences.” Second, to “disclose to the sentencing court all facts that impact the sentencing guidelines or mandatory minimum sentences.” In short, federal prosecutors are to charge the crime with the harshest sentence, and then provide the court all information it has to ensure that sentence.

Opinions about the upcoming changes to the justice system are mixed, but one thing is certain: the federal government will be taking a tougher stance on crime for the foreseeable future. And that means more serious charges and longer sentences for federal crimes.

Under the Obama administration, the Department of Justice encouraged federal prosecutors to use their own discretion over what crimes to charge, in part to avoid charges that carried longer minimum sentences. Proponents of the new policy say this memo is just about enforcing the laws consistently and that the prior policy, by being soft on crime and uneven in its treatment of crimes, is partly to blame for the recent increase in violent crime in American cities. Additionally, the new memo allows some prosecutorial discretion as long as an authorized supervisor approves decisions that amount to leniency on charges or sentencing. This fact, they say, means it is not as tough as the Ashcroft Memo of the Bush administration.

Critics of the Sessions Memo point to several flaws. First, they say it is a return to policies that have failed in the past. Also, they claim it does not adequately take into account the changing social position on drugs as more of a healthcare issue. Additionally, critics claim the Memo ignores that overall crime rates are at historic lows, unfairly and disproportionately incarcerates minorities, and will ultimately cost taxpayers more money. Regardless of these criticisms, the new directives are effective immediately and are here to stay.

If you are being investigated by a federal law enforcement agency or facing a federal criminal charge, you should contact an attorney immediately. As a former federal prosecutor who now exclusively practices criminal defense, Michigan Attorney John Freeman can explain how these changes may affect you and your future.