Prose­cu­tors are push­ing back against Ses­sions direc­tive

Let­ter sign­ers say they want to make clear that their views dif­fer

The Washington Post Sunday - - POLITICS & THE NATION - BY LIND­SEY BEVER lind­sey.bever@wash­post.com

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.

MICHAEL REYNOLDS/EURO­PEAN PRESSPHOTO AGENCY

Prose­cu­tors call U.S. At­tor­ney Gen­eral Jeff Ses­sions’s direc­tive a re­turn to tough-on-crime prac­tices that will harm com­mu­ni­ties.

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