Prosecutors are pushing back against Sessions directive
Letter signers say they want to make clear that their views differ
A week after U.S. Attorney General Jeff Sessions told federal prosecutors to “charge and pursue the most serious, readily provable offense” and follow mandatory minimum sentencing guidelines, a bipartisan group of prosecutors at the state and local level is expressing concern.
Thirty current and former state and local prosecutors have signed an open letter, which was released Friday by the nonprofit group Fair and Just Prosecution, a national network working with newly elected prosecutors. The prosecutors say that even though they do not have to act, the attorney general’s directive “marks an unnecessary and unfortunate return to past ‘tough on crime’ practices” that will do more harm than good in their communities.
“What you’re seeing in this letter is a different wind of change that’s blowing through the criminal justice field,” said Miriam Krinsky, a former federal prosecutor and the executive director of Fair and Just Prosecution.
“There does seem at the federal level to be a return to the toughon-crime, seek-the-maximumsentence, charge-and-pursuewhatever-you-can-prove approach,” Krinsky said. But, she added, at a local level, some think “there are costs that flow from prosecuting and sentencing and incarcerating anyone and everyone who crosses the line of the law, and we need to be more selective and smarter in how we promote both the safety and the health of our communities.”
Signers of the letter include Los Angeles City Attorney Mike Feuer, Manhattan District Attorney Cyrus R. Vance Jr., and Karl Racine, attorney general of the District of Columbia.
The prosecutors say that there are no real benefits to Sessions’s May 10 directive, but they noted “significant costs.” They wrote that the increased use of mandatory minimum sentences will expand the federal prison population and drive up spending.
“There is a human cost as well. Instead of providing people who commit low-level drug offenses or who are struggling with mental illness with treatment, support and rehabilitation programs, the policy will subject them to decades of incarceration,” they wrote, accusing Sessions of reinvigorating “the failed ‘war on drugs.’ ”
Deschutes County (Ore.) District Attorney John Hummel, who is not affiliated with a political party, said in an interview that the Sessions directive doesn’t affect the work of local prosecutors. But he said it still will have an impact on his community because there are people in his jurisdiction who will be charged with federal crimes.
“If the United States attorney for the district of Oregon is now going to be seeking a sentence that is as tough as possible with incarceration as opposed to seeking a sentence that is most likely to result in this person not committing a new crime, well that person is going to be more likely to commit a new crime in Deschutes County when he comes home,” Hummel said. “So this policy is going to make Deschutes County less safe under the guise of ‘tough on crime.’ ”
The signers say the purpose of the letter is to make it clear that not all those in the justice system share Sessions’s view.
“It’s a national message because all of us signed it. But I wanted to say, ‘Hey, that’s not how we do things in King County,’ ” said Daniel Satterberg, prosecuting attorney in King County, Wash. Satterberg said he is now nonpartisan but that he has been elected three times as a Republican. “We consider the facts of the case and the law, and come up with what I think is a pretty thoughtful approximation of justice . . . and it doesn’t always mean seeking the maximum charge and the maximum length of time.”
Following Sessions’s announcement, the National District Attorneys Association, which represents thousands of elected and appointed state and local prosecutors, said in a statement that the charging and sentencing guidelines give federal prosecutors flexibility by reserving “the harshest punishments for those committing the most serious offenses, instructing federal prosecutors to seek the most serious charge they can prove,” while, at the same time, allowing them “to deviate from the federal sentencing structure should circumstances in a case warrant a lesser sentence.”
The reason that is important, the association said, is because circumstances vary greatly from case to case.
“It is a myth that low level, nonviolent drug offenders are languishing in federal prisons,” the association said in the statement. “Yet we must be smart about the way we use prison and prosecutors must continue to learn how best to handle certain types of cases, such as human trafficking, where the victims too often have been treated as criminals.”
Larry Leiser, president of the National Association of Assistant United States Attorneys, which also supports Sessions’s order, said the tough sentencing practice, which was put in place in the 1980s and reaffirmed by U.S. attorneys general several times since, establishes consistency among federal prosecutors. “Consistency is the hallmark of justice,” he said.
In 2013, then-Attorney General Eric H. Holder Jr. ended the longtime approach, saying such penalties should be reserved for “serious, high-level or violent drug traffickers.”
“So what you have here is Sessions really going back to the long-standing practice of the Department of Justice,” Leiser said. “I think the vast majority of [assistant U.S. attorneys] around the country are glad we’re back to the practice that served us so very well for so many years starting in 1981.”
“We consider the facts of the case and the law, and come up with a pretty thoughtful approximation of justice . . . and it doesn’t always mean seeking the maximum.” Daniel Satterberg, prosecuting attorney, King County, Wash.
Prosecutors call U.S. Attorney General Jeff Sessions’s directive a return to tough-on-crime practices that will harm communities.