The DOJ's New Sentencing and Charging Policy Presents Challenges and an Opportunity

By Haris Alic

On May 10th, Attorney General Jeff Sessions issued a new charging and sentencing policy tying the hands of prosecutors to “charge and pursue the most serious, readily provable offense.” In most cases, as the Memorandum outlines, “the most serious offenses are those that carry the most substantial guidelines sentence, including mandatory minimum sentences.” The policy outlined is a direct reversal of protocols initiated by the Obama administration, which sought to focus mandatory minimum penalties “for serious, high-level, or violent drug traffickers” and not low-level, nonviolent offenders. While much attention has been given to the policy shift of the new administration, few have noted that this development re-affirms the role Congress should play in addressing the malfunctions of our federal justice system.

Since 1980, the federal prison population has grown at rates that have far exceeded the nation’s total population growth. According to the Congressional Research Service, “between 1980 and 2013 the federal prison population increased, on average, by about 5,900 inmates a year”—peaking in 2013 at 219,298 inmates. According to a report by the Urban Institute, the largest total growth rate has come from drug offenders, “which accounted for 42 percent of the total federal prison population growth between 1998 and 2010.” The same report found that there were over 34,000 more drug offenders serving time in federal prison in 2010 than in 1998—a 57 percent increase. Furthermore, as of 2014, over 48 percent of drug offenders, and one-third of all offenders in federal prison, had little or no prior criminal history at the time of sentencing.

Reforms initiated by Congress, the U.S. Sentencing Commission, and the Justice Department have contributed to a measurable decrease in the federal prison population. From 2014 through 2016, the federal prison population shrunk by over 27,000 inmates—hitting a low unseen since 2006. Prior to the Holder Memorandum, prosecutors were limited in their use of individualized assessments and could not “decline to charge the quantity necessary to trigger a mandatory minimum” in drug offenses—provided the defendant met certain criteria—when contemplating charges. According to the U.S. Sentencing Commission, in the 2016 fiscal year “the proportion of drug offenders convicted of a mandatory minimum was the lowest it has been since 1993.

However, the new charging policies outlined in the Sessions Memorandum are a notable departure from the previous administration. Prosecutors will still have some discretion, but their hands will be largely tied to pursuing the “most serious, readily provable offense.” Furthermore, the Sessions Memorandum adds another layer of bureaucratic oversight by requiring prosecutors to document reasoning and request approval from a United States Attorney or the Assistant Attorney General when pursuing departures or variances from advisory sentencing guidelines. This change is likely to adversely affect low-level, nonviolent drug offenders who could be better serviced by diversion programs aimed at treating addiction.

The new DOJ sentencing and charging policy is concerning but also presents an opportunity for Congress to finally act on common sense, criminal justice reform. If Congress needs an example of how to prioritize public safety and effectively address the drug epidemic plaguing our communities, it won’t have to look any further than the laboratories of democracy. Since 2007, more than 31 states have reformed their sentencing and corrections policies, with conservative states like Texas and Georgia showing particularly strong success. Georgia has seen its overall prison commitments decrease by 15 percent throughout the end of 2015—the lowest they have been since 2002. Texas has averted millions of dollars in new prison bed construction and is on the path to closing more correctional facilities as the state’s imprisonment rate continues to decline. These reforms have not only saved tax dollars and decreased incarceration rates, but recent data has shown that in the 10 states with the largest declines in imprisonment, the crime rate fell at an average of about 14.4 percent.

While these states have prioritized rehabilitation and found consensus on much-needed reforms, Congress has lagged behind. With these new charging policies in place, we have arrived at an urgent and opportune moment to reform our nation’s justice system. If Congress does not act now, the federal prison population could surpass its 2013 height, overturning the progress that has been made, and locking us in an endless cycle of incarceration.