- 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- Former AG Eric Holder's 2013 and 2014 memos were expressly rescinded; these encouraged conscientious application of harsher charging and sentencing decisions and restricted the use of certain mandatory minimum sentences (e.g.,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).
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."