Sunday, May 14, 2017

Trial Season

Last Friday, Attorney General Jeff Sessions issued a memo establishing  new and more strident prosecution policies. The highlights (or low points) include:

  • Prosecutors should charge and prove the "most serious, readily provable offense.
  • Most serious offenses are those that carry the "most substantial guidelines sentence, including mandatory minimum sentences."
  • Variance from this policy requires supervisory approval and must be "documented in the file."
  • Recommendations for guideline variance or departures also require supervisory approval and documentation. 
  • Former AG Eric Holder's  2013 and 2014 memos were expressly rescinded; these encouraged conscientious application of harsher charging and sentencing decisions and restricted the use of certain mandatory minimum sentences (e.g., 851s).
The memo is after the jump.

Mr. Holder understandably deemed it an "unwise and ill-informed" reversal. But some argue there is room for a more hopeful reading. Local prosecutors are to exercise discretion, "with the goal of achieving just and consistent results" and "should in all cases seek a reasonable sentence under the factors in 18 USC sec. 3553." Reasonable prosecutors may continue to prosecute reasonably.  

Mr. Sessions acknowledged as much in his recent remarks to a law enforcement audience:
And I trust our prosecutors in the field to make good judgements. They deserve to be unhandcuffed and not micro-managed from Washington. Rather, they must be permitted to apply the law to the facts of each investigation. . . .  I have given our prosecutors discretion to avoid sentences that would result in an injustice.
Reason for hope? It is certainly worth invoking Mr. Sessions' face-value statements in negotiations.  

For now, though, trials may be more common. This could be a good thing; in the last couple of years, as part of some retroactive litigation,  we have reviewed far too many plea agreements (with appellate waivers) that resulted in life or near-life sentences, for little or nothing in return. Can't really do much worse at trial. Maybe this is a chance to change our approach. As Rahm Emanuel observed, crisis is opportunity: "You never let a serious crisis go to waste. And what I mean by that it's an opportunity to do things you think you could not do before.

In the coming  months, this blog will devote some space to trials: evidence, tactics, training.  Please give us your feedback, comments are welcome either on the blog or by email. Look for some guest bloggers. And if you have ideas to share, please let us know. 

-- Melody










   
 

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