Justice Department officials have been weighing new guidance that would encourage prosecutors to charge suspects with the most serious offenses they can prove, a reversal of Obama-era policies that aimed to reduce the federal prison population and show more leniency to lower-level drug offenders.
If embraced by Attorney General Jeff Sessions, this could result in an increased use of rigid mandatory minimum sentences that critics have called unnecessarily harsh.
The guidance is taking shape in the form of a memo that ultimately will be shared with the nation's federal prosecutors, but the timeframe for release is unclear. Drafts of the memo have been circulating for weeks and have undergone revisions, so the final language is not yet certain.
A person involved in the discussions described one version to The Associated Press speaking only on condition of anonymity because the guidance has not been publicly announced. As outlined, that version would encourage prosecutors to charge people with the most serious, provable offenses — something more likely to trigger mandatory minimum sentences. Those rules limit a judge's discretion and are typically dictated, for example, by the quantity of drugs involved in a crime.
Such a policy shift has been expected since Sessions was appointed and is in keeping with his tough-on-crime public posture, resistance to proposals he sees as overly lenient and repeated statements about running a Justice Department that enforces laws as they're written. In 2003, Attorney General John Ashcroft enacted a similar policy that directed prosecutors to "pursue the most serious, readily provable offense in all federal prosecutions."
Department spokeswoman Sarah Isgur Flores told AP that Sessions has called for a review of all department policies "to focus on keeping Americans safe and will be issuing further guidance and support to our prosecutors executing this priority — including an updated memorandum on charging for all criminal cases."
The new policy statement is likely to represent a major departure from a 2013 initiative known as "Smart on Crime," in which then-Attorney General Eric Holder discouraged harsh sentences for low-level, nonviolent offenders, which advocates say contributed to a national rethinking of how America's drug criminals should be prosecuted.
Holder's guidance was aimed at reducing costs of a crowded federal prison system, encouraging shorter sentences for drug offenders not seen as threat to public safety and preserving Justice Department resources for more serious and violent criminals.
Though Holder did say that prosecutors ordinarily should charge the most serious offense, he instructed them to do an "individualized assessment" of the defendant's conduct. And he outlined exceptions, for not pursuing mandatory minimum sentences, including if a defendant's crime does not involve violence or if he doesn't have a leadership role in a criminal organization.
The Obama policy shift coincided with U.S. Sentencing Commission changes that made tens of thousands of federal drug prisoners eligible for early release, and an Obama administration clemency initiative that freed convicts deemed deserving of a second chance. Combined, those changes led to a steep decline in a federal prison population that now stands at just under 190,000, down from nearly 220,000 in 2013. Nearly half of those inmates are in custody for drug crimes, records show.
Obama administration officials cited that decline and a drop in the overall number of drug prosecutions as evidence that policies were working as intended. They argued prosecutors were getting pickier about the cases they were bringing and were seeking mandatory minimum sentences less often. Efforts to overhaul the criminal justice system secured bipartisan support in recent years as Republicans embraced its cost-cutting potential while Democrats saw a chance to correct what they consider unduly harsh sentences.
Still, some prosecutors felt constrained by the Holder directive and expressed concern that they'd lose plea bargaining leverage — and a key inducement for cooperation — without the ability to more freely pursue years-long mandatory minimum punishments.
Sessions himself has long signaled his opposition to the "Smart on Crime" policies, and has repeatedly warned that eliminating mandatory minimums weakens the ability of law enforcement to protect the public.
In the Senate, he was among a group of GOP lawmakers last year who opposed legislation that would have allowed judges to reduce prison time for some drug offenders. He warned that the bill would release thousands of violent felons and endanger lives, at a time when crime in some large cities was rising.
After becoming attorney general, he promised in March there would be new guidance on criminal charges. He also directed the nation's federal prosecutors to intensify their focus on the worst violent offenders.
"My vision of a smart way to do this is, let's take that arrest, let's hammer that criminal who's distributing drugs that have been imported in our country," Sessions said in a speech that month to law enforcement officials that some advocates viewed as a harbinger of his intent to revise Holder's policies.
Barry Pollack, president of the National Association of Criminal Defense Lawyers, said the organization hoped the Justice Department would "agree that disproportionate resources should not be expended on nonviolent offenses committed by persons with limited to no criminal history and that drug addiction needs to be combated through treatment, not incarceration."