Two former top Obama-appointed prosecutors co-author a diatribe against Trump attorney general Jeff Sessions for returning the Justice Department to purportedly outdated, too “tough on crime” charging practices. Yawn. After eight years of Justice Department stewardship by Eric Holder and Loretta Lynch, and after Obama’s record 1,715 commutations that systematically undermined federal sentencing laws, we know the skewed storyline.
The surprise is to find such an argument in the pages of National Review Online. But there it was on Tuesday: “On Criminal Justice, Sessions Is Returning DOJ to the Failed Policies of the Past,” by Joyce Vance and Carter Stewart, formerly the United States attorneys for, respectively, the Northern District of Alabama and the Southern District of Ohio. Ms. Vance is now lecturing on criminal-justice reform at the University of Alabama School of Law and doing legal commentary at MSNBC. Mr. Stewart has moved on to the Draper Richards Kaplan Foundation, fresh from what it describes as his “leadership role at DOJ in addressing inequities in the criminal justice system,” focusing on “alternatives to incarceration,” and “reducing racial disparities in the federal system.”
The authors lament that Sessions has reinstituted guidelines requiring prosecutors “to charge the most serious offenses and ask for the lengthiest prison sentences.” This, the authors insist, is a “one-size-fits-all policy” that “doesn’t work.” It marks a return to the supposedly “ineffective and damaging criminal-justice policies that were imposed in 2003,” upsetting the “bipartisan consensus” for “criminal-justice reform” that has supposedly seized “today’s America.”
This is so wrongheaded, it’s tough to decide where to begin.
In reality, what Sessions has done is return the Justice Department to the traditional guidance articulated nearly four decades ago by President Carter’s highly regarded attorney general, Benjamin Civiletti (and memorialized in the U.S. Attorney’s Manual). It instructs prosecutors to charge the most serious, readily provable offense under the circumstances. Doesn’t work? This directive, in effect with little variation until the Obama years, is one of several factors that contributed to historic decreases in crime. When bad guys are prosecuted and incarcerated, they are not preying on our communities.
The thrust of the policy Sessions has revived is respect for the Constitution’s bedrock separation-of-powers principle. It requires faithful execution of laws enacted by Congress.
A concrete example makes the point. Congress has prescribed a minimum ten-year sentence for the offense of distributing at least five kilograms of cocaine (see section 841(b)(1)(A)(ii) of the federal narcotics laws). Let’s say a prosecutor is presented with solid evidence that a defendant sold seven kilograms of cocaine. The crime is readily provable. Nevertheless, the prosecutor follows the Obama deviation from traditional Justice Department policy, charging a much less serious offense: a distribution that does not specify an amount of cocaine — as if we were talking about a one-vial street sale. The purpose of this sleight of hand is to evade the controlling statute’s ten-year sentence, inviting the judge to impose little or no jail time.
That is not prosecutorial discretion. It is the prosecutor substituting his own judgment for Congress’s regarding the gravity of the offense. In effect, the prosecutor is decreeing law, not enforcing what is on the books — notwithstanding the wont of prosecutors to admonish that courts must honor Congress’s laws as written.