AG Sessions orders tougher prison sentences as the 'right and moral thing to do'

"We are returning to the laws as passed by Congress," Jeff Sessions said.

ByABC News
May 12, 2017, 5:18 PM

— -- U.S. Attorney General Jeff Sessions has sent a memo to all federal prosecutors instructing them to pursue the “most serious, readily provable offense" for their cases.

The most "serious" crimes are determined by which offenses carry the longest sentences, according to guidelines.

The policy shift is intended to advance public safety and promote respect and consistency for the legal system, Sessions said today during public remarks, adding that it is the "the right and moral thing to do."

"I trust our prosecutors in the field to make good judgments,” he said. “They deserve to be unhandcuffed and not micro-managed from Washington.”

What's new

Exceptions for what can be charged will only be allowed with approval from a U.S. attorney, an assistant U.S. attorney general or a designated supervisor. This takes away the discretion from prosecutors to charge a lesser offense but leaves some level of flexibility in place.

The "Sessions memo," which he sent Thursday night, replaces the so-called “Holder memo," which was issued in 2013 under President Obama's attorney general, Eric Holder.


Prosecutors will be expected to recommend a sentence within federal guidelines when before a federal judge. Recommendations outside of the guidelines require supervisory approval and a documented explanation. Prior to this memo, prosecutors did not have to get supervisory approval to recommend a sentence outside the guidelines. The idea is to do away with vague sentencing recommendations that vary across the country.

The new policy also requires prosecutors to disclose all the facts in court that could impact sentencing. For example, if someone is caught with 1,000 kilos of marijuana, which would kick in a mandatory 10-year minimum sentence, attorneys must now tell the court the full amount or marijuana. In the past, prosecutors could refrain from declaring the whole amount to the court so as not to trigger the mandatory minimum.

Potential impact

The changes will likely increase the number of people charged as well as the size of the federal prison population.

The Justice Department has already had conversations with the U.S. Bureau of Prisons about the need for flexibility with capacity in relation to immigration detainees, so U.S. officials are apparently aware they may need to increase prison space although at the moment the federal prison population is at an all-time low.

As with immigration enforcement, the administration is taking the view that it will follow the law.

"We are returning to the laws as passed by Congress," Sessions said today while announcing the new guidelines.

The Sessions policy harkens back to the Bush-era "Aschroft memo," which stated that "federal prosecutors must charge and pursue the most serious, readily provable offense."

But Sessions said "it is important to note" that unlike previous memoranda, his policy gives prosecutors discretion to avoid sentences that "would result in an injustice."

Central District of California Acting U.S. Attorney Sandra Brown told reporters today that it would have little impact on the day-to-day operation of her office.

"It is in essence the same sentencing and charging doctrine that we have followed for decades with regard to charging the most readily provable offenses and holding people accountable for their actions," she said.

When asked if it would have a visible impact on their cases, she said, "no."

The policy change takes place immediately, even though almost all the U.S. attorneys across the county are serving in acting roles, following the request for resignation in March of all remaining as holdovers from the Obama administration.


Former Attorney General Holder called the move "unwise and ill-informed" in a statement, adding that the policy is "is not tough on crime. It is dumb on crime."

"In removing the discretion I vested in the men and women of the Department of Justice to seek justice for the unique circumstances that each case presents, this administration reveals its lack of faith in their judgment and integrity," he wrote.

Udi Ofer, director of the American Civil Liberties Union’s Campaign for Smart Justice, said Sessions is pushing federal prosecutors to repeat a failed experiment: the war on drugs.

"With overall crime rates at historic lows, it is clear that this type of one-dimensional criminal justice system that directs prosecutors to give unnecessarily long and unfairly harsh sentences to people whose behavior does not call for it did not work," Ofer said in a statement.

On Capitol Hill today reaction was mixed.

Sen. Tom Cotton, R-Ark., applauded the change, saying it was "common sense" and will help reduce crime and drug use.

"I agree with Attorney General Sessions that law enforcement should side with the victims of crime rather than its perpetrators," he said in a statement.

Sen. Rand Paul, R-Ky., on the other hand, said mandatory minimum sentences have "unfairly and disproportionately incarcerated too many minorities for too long."

"Attorney General Sessions’ new policy will accentuate that injustice," he said in a statement.

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