New 2017 Federal Drug Policy from Attorney General Jeff Sessions

Last week, the Attorney General of the United States sent a memo to all the Offices of the U.S. Attorney General around the country, including the one overseeing the Northern District of Texas that prosecutes federal crimes here in the Dallas-Fort Worth area.

It’s a big deal for anyone facing criminal charges here in Texas, or who is (or suspects they are) being investigated for violating a federal crime.   If you are arrested for a federal drug crime in 2017 here in Texas, then you’re facing some serious jail time under the federal sentencing guidelines.

May 11, 2017 DOJ Memo from Sessions to All Federal Prosecutors

For your convenience, the entire memo has been uploaded into the Michael Lowe Digital Library; read it here:

Immediate Change to Federal Position on Drug Charges Set Up By Eric Holder

The memo is effective immediately.  Federal prosecutors in the Northern District of Texas must comply with its instructions now – today.

This means that criminal defense attorneys representing clients who are being investigated, have been charged, or are awaiting sentencing in a federal case, must deal with this new policy stance now – today.

Guts the 2013 Policy Set Up by Former Attorney General Eric Holder

You may recall that Eric Holder made some sweeping changes of his own when he had the job of being the top federal prosecutor in the country.  Holder also sent out a memo to his prosecutors.  In it, they were instructed to try and find ways to avoid sentencing defendants convicted of drug crimes to the mandatory maximum sentences found in the federal sentencing laws.  This applied only to nonviolent drug crime offenders.

How did it work?  It allowed federal prosecutors to omit the amount of drugs involved in a case from the charging documents.  That sideswiped the implementation of mandatory long prison sentences under the federal sentencing laws.

Some called it merciful for many people charged with federal drug crimes.  Others heralded it as a smart budgetary measure, because it saved federal expenditures on incarcerating all these people for extended periods of time in the federal prison system.

For more on Holder’s drug charging policy, read our discussion in “Federal Drug Crimes Get Different Treatment by U.S. Attorneys Per Eric Holder; What Does This Mean for Texas Defendants?”

The New Policy: Maximum Charges and Severest Penalties

The May 2017 Sessions Memo is an internal directive; it is sent from the boss to his staff of prosecuting attorneys around the country.  Sessions is directing federal prosecutors to charge defendants with the maximum criminal charges possible with the evidence they have in their file, seeking the harshest sentencing for each charge.

The memo is short and sweet.  Here is what AG Sessions has instructed:

1. All federal prosecutors working for the Office of the United States Attorney General are to “… charge and pursue the most serious, readily provable offense.”
2. They are then to “…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 18 USC Section 3553.”

Here’s the thing: AG Sessions has done a fruit basket turnover of former AG Holder’s charging policy for federal crimes, specifically drug crimes.  It’s a new ball game.

Seen By Many as a Return to the War on Drugs

So what does this mean for Texas and the rest of the country?  Many argue that Sessions is returning the Department of Justice to the “war on drugs.”

In an op-ed piece published by CNN.com, Kentucky Senator Rand Paul criticized this new federal prosecutorial policy, arguing that it will “ruin lives.”  Senator Paul points out that history has proven that federal mandatory minimum sentences work to discriminate against minorities.

Paul warns that unfairly disproportionate numbers of young African American males are going to be facing long prison terms under this new policy.

Sessions’ response?  Yes, he has one.  From a recent speech (watch the video here), he defends his new drug charging and sentencing policy as a return to enforcing federal laws “… as passed by Congress, plain and simple.”

As for criticism that nonviolent offenders will be treated unfairly, Sessions said that his policy is going after “drug traffickers” and not “low-level drug offenders.”

Sessions’ position: “These are drug dealers, and you drug dealers are going to prison.”

Will There Be Possible Congressional Action? Maybe.

Senator Paul together with Senator Paul Leahy proposed a new federal law to be passed that would change the sentencing guidelines for long sentences involving nonviolent drug offenders.

This was the proposed Justice Safety Value Act.  Read more about that here.  It didn’t become law – but it could be reintroduced to Congress as another proposed bill in the future.

Criminal Defense Lawyer’s Perspective on May 2017 Sessions Memo

Let’s consider how this new directive from the boss gets implemented here in the Northern District of Texas and in other AG Offices around the country.  The local federal prosecutors have to do as they are instructed, just like any worker has to obey the boss.

So, reading the May 2017 Sessions Memo, what are they allowed to do?  Not much – except follow the black letter law of the statute.

There’s not much discretion here for the individual prosecutor – even when that experienced attorney deems that some discretion in how he (or she) handles their particular case is justified.

Moreover, if he or she does do feel strongly that he or she should apply an exception to the general rule here, it’s a big administrative effort.  The individual federal prosecutor has to justify it in a formal memorandum, sent to his higher-ups for their okey-dokey.

That’s not going to happen as much as any criminal defense lawyer would like – and it’s pretty clear that lots of those exception memoranda are never going to be written, much less approved.

As the president of the National Association of Criminal Defense Lawyers explains:

“… [P]rosecutors are now required in every case mindlessly to seek the maximum possible penalty. The new policy resurrects the failed one size fits all approach to criminal justice of prior Administrations. Those policies led to the shameful mass incarceration that made the United States first in the world in putting its citizens in jail.

“The Attorney General should be applying a fact-based approach to public health matters like drug addiction and abuse. Instead, he has established a policy that will lock up non-violent offenders with little or no criminal history, waste untold millions of dollars, devastate families and whole communities, and yet not make us any safer.”

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For more information, check out our web resources on federal sentencing guidelines, read Michael Lowe’s Case Results, and read his in-depth article,” Pre-Arrest Criminal Investigations.”