Friday, May 12, 2017
With incomplete but meaningful progress on wrongful convictions and sentencing reform, a partial return to the traditional expectations of prosecutorial discretion in the interests of justice was a distinctive mark of the Obama Department of Justice. Then-Attorney General Holder began to address the problem of over-incarceration for non-violent offenses by encouraging federal prosecutors to press charges that were tailored to the culpability and circumstances of the defendant, reserving lengthy prison terms for violent criminal and drug kingpins. A bipartisan consensus has been emerging that decades-long prison sentences for low-level drug offenders were contrary to justice, undermined community stability, foreshadowed lifelong problems with the criminal justice system, and imposed massive costs on taxpayers.
Alas, the increasingly retrograde Department of Justice under Attorney General Sessions has swept all of this away and retreated to an unthinking and morally unjust policy of charging defendants with the most serious crimes carrying the highest sentences that can pass the low threshold of probable cause. As the Washington Post reports today, Sessions contends that this allows more flexibility to prosecutors who would be “un-handcuffed and not micromanaged from Washington.” In fact, the Trump political surrogate-cum-Attorney General -- has ordered federal prosecutors to “charge and pursue the most serious, readily provable offense.” So now, contrary to a morally thoughtful system of justice and every study of what works in criminal justice, we retreat to a failed policy that has embarrassed our country with the highest rate of incarceration anywhere in the world and which will destroy more lives and families, impairing rehabilitation and restoration to communities. And just like the doltish “wall,“ we're all going to end up paying for this in ways monetary and otherwise.
Sessions argues that “[w]e are returning to the enforcement of the laws as passed by Congress, plain and simple.” But as I wrote on the topic four years ago (full post here):
No legal, moral, or professional obligation requires a prosecutor -- wielding the awesome power of government to subject a person to captivity -- to charge someone whenever a plausible case can be made that he or she has committed a crime, much less to seek the highest charge (with the highest attendant sentence) that the facts could support. Indeed, there was a time when a prosecutor, as a matter of wise discretion, would choose not to file a charge at all, when the circumstances were extenuating or a criminal solution was not in the best interests of all of those involved in an episode.