What crimes do you consider to be the most serious? Murder? Child sex offenses? Even drug trafficking might be a reasonable choice. Most people believe we should apply the harshest sentences to the most serious crimes, and most have an idea of which are the most serious.
Consider this method of classifying them: “By definition, the most serious offenses are those that carry the most substantial guidelines sentence, including mandatory-minimum sentences.”
In other words, if government-issued sentencing guidelines assigned the highest sentence to the crime of scalping concert tickets, that would be the most serious crime in America. Would you agree? Or might you instead wonder if Congress had made a mistake — or needed to be voted out?
That quote is from a policy memo released today by Attorney General Jeff Sessions. In the memo, he orders prosecutors in every case to invoke any applicable mandatory minimum sentences. In other words, a very low-level, non-violent drug offender could — and should — be sentenced to the same, harsh sentencing scheme as the highest level, most violent one.
Sessions memo directly reverses Holder memo urging mercy for marijuana possession
In 2013, with the mass incarceration crisis heating up and multiple states legalizing marijuana, the Obama Administration was forced to make a policy choice. It could order federal prosecutors to continue on as if nothing had changed, harshly prosecuting even low-level marijuana offenders, or it could make a change.
Federal judges already have the authority to bypass mandatory minimums when they feel justice would be served, but it’s easier to go along with the plan. What then-Attorney General Eric Holder did was to authorize US Attorneys to omit the quantity of drugs from their sentencing memoranda to judges. The amount of drugs in question is a major factor that triggers long, mandatory minimum sentences. Without the information easily to hand, judges were inclined to use their own judgment on sentencing.
Sessions’ policy memo directly reverses that policy. US Attorneys are now required to include drug quantities so that mandatory minimums are more likely to be triggered. They are ordered to seek the sentences promoted by the federal sentencing guidelines, even if these feel grossly unjust to many. If they have a good reason not to do so, they should apply to the Justice Department for “supervisory approval.”
Former Attorney General Holder was highly critical of the reversal.
“The policy announced today is not tough on crime,” he said. “It is dumb on crime. It is an ideologically motivated, cookie-cutter approach that has only been proven to generate unfairly long sentences that are often applied indiscriminately and do little to achieve long-term public safety.”