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Restoration of Honesty: Jeff Sessions' Charging Instructions

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The Washington Post has printed on its editorial page a few of my remarks commending the charging policy Attorney General Sessions issued last week for federal prosecutors.  I appreciate the Post's  willingness to air a competing point of view.  

The piece was written as an op-ed, but was considerably shortened when the Post published it, and omits some of the points I believe merit attention

The piece as originally submitted argues:

Contrary to the Post's May 13 editorial ("It's time for federal sentencing reform"), Attorney General Sessions made the right call in restoring a long-honored standard for bringing criminal charges against those who profit from the ignorance and misery that fuels drug trafficking.

Sessions' instruction to prosecutors is that they should charge the most serious readily provable offense.  That is simply saying that they should charge the defendant with what he actually did.  To align the charges with the facts is what we pay honest prosecutors to do.


The Post acknowledges that the prior Obama administration policy was outcome-slanted, i.e.,  that it adjusted the charge to fit what the Justice Department deemed to be proper punishment.  But it is not up to the executive branch to subvert mandatory minimum sentencing that was put into the law by Congress.  Such maneuvering is less compassion than usurpation.


The Post is also mistaken in downplaying Mr. Sessions' instruction that restoration of the a more nearly uniform charging standard can have exceptions in unusual cases.  The Post's criticism is as summary as it is misguided; it consisted of a single sentence saying that leniency exceptions "will require supervisor authorization and a written explanation."  But more supervision, reflection and accountability are what we should want, not fear, from federal prosecutors.


Mr. Sessions' revised policy also improves candor and reliability in federal sentencing.  Under the Obama policy, prosecutors could  --  indeed they were encouraged to  --  withhold from the court relevant sentencing facts, such as the amount of drugs involved.  But in virtually every other context, the Post would be outraged, and rightly so, if the prosecution withheld information favorable to the defendant in order to get the sentence the government wanted.  We are heading down the wrong path when we approve anything less from the government than complete disclosure from the filing of the indictment on, let the chips fall where they may.


The Post is correct in believing that we need a bi-partisan charging and sentencing policy.  Oddly, it overlooks the fact that we already have one in the mandatory minimum terms it condemns.  Those terms stem from the same consensus that produced the bi-partisan Sentencing Reform Act of 1984, co-sponsored by none other than Ted Kennedy and Strom Thurmond.


It would be one thing if more determinate sentencing had proved to be a failure.  From the drug pusher's perspective, undoubtedly it has.  But from the law-abiding citizen's point of view, reining the prior, almost unlimited, judicial running room has been a boon.  In the era of mandatory sentencing, yes, the prison population expanded, but  --  in a key fact the Post omits  --  crime rates plummeted by half.  The country has not been this safe since the Baby Boomers were in grade school.  It's one of the most remarkable chievements in domestic policy of the last 50 years.  Combined with other tough-on-crime policies such as more proactive and computer-assisted policing, it has made the country much more secure, especially for minorities, who are disproportionately victims of the drug trade and the deadly gunplay it breeds.


From the standpoint both of a cleaner, more honest process, and better outcomes for ordinary citizens, the Attorney General's charging policy merits our thanks.



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