Bipartisan senators press Sessions for information about DOJ criminal charging policy

WASHINGTON - U.S. Senators Dick Durbin (D-IL), Mike Lee (R-UT), Cory Booker (D-NJ), and Rand Paul (R-KY) today pressed Attorney General Jeff Sessions for information on the effects the Department of Justice’s (DOJ) new charging policies for nonviolent drug offenses have had over the last year. A May 10, 2017 memorandum from DOJ directed federal prosecutors to pursue the most serious offense possible when prosecuting defendants. This new policy rescinded the May 19, 2010 DOJ memorandum which required federal prosecutors to exercise prosecutorial discretion, considering the merits of each case, an individualized assessment of the defendant’s conduct and criminal history, and the circumstances relating to commission of the offense, including any impact on victims.

In June 2017, the Senators sent a letter to AG Sessions seeking answers about the May 10, 2017 memorandum. AG Sessions’ response to that letter is available here.

“We remain concerned about the Department’s reversal of charging policy, and write to understand the effects of its application over the last year,” the Senators wrote in a letter to AG Sessions. “In your August 4, 2017 response to our letter, you stated, ‘We at the Department of Justice must follow law. We do not make law.’ We agree with this proposition, but trust you will also agree that the Department bears an awesome responsibility as our nation’s top prosecutor to ensure that justice is served for the American people, victims, and offenders. This includes ensuring that the Department’s limited resources are focused on the most serious threats to public safety, the need for prioritization of criminal investigations and filings, and the prudent exercise of prosecutorial discretion.”

Full text of today’s letter is available below:

March 22, 2018

Dear Attorney General Sessions:

We write to follow up on our June 7, 2017 letter concerning the Department of Justice’s May 10, 2017 memorandum directing federal prosecutors to “pursue the most serious, readily provable offense.” This new policy rescinded the May 19, 2010 Department of Justice memorandum which required federal prosecutors to exercise prosecutorial discretion, considering the merits of each case, an individualized assessment of the defendant’s conduct and criminal history, and the circumstances relating to commission of the offense, including any impact on victims.

In your August 4, 2017 response to our letter, you stated, “We at the Department of Justice must follow law. We do not make law.” We agree with this proposition, but trust you will also agree that the Department bears an awesome responsibility as our nation’s top prosecutor to ensure that justice is served for the American people, victims, and offenders. This includes ensuring that the Department’s limited resources are focused on the most serious threats to public safety, the need for prioritization of criminal investigations and filings, and the prudent exercise of prosecutorial discretion. In a 1940 address to United States Attorneys, then Attorney General Robert H. Jackson aptly noted:

Law enforcement is not automatic. It isn’t blind. One of the greatest difficulties of the position of prosecutor is that he must pick his cases, because no prosecutor can even investigate all of the cases in which he receives complaints…If the prosecutor is obliged to choose his cases, it follows that he can choose his defendants.

We remain concerned about the Department’s reversal of charging policy, and write to understand the effects of its application over the last year. Please answer the following questions by April 12, 2018.

1. As we noted in our letter last year, “The Department’s new policy ignores the growing bipartisan view that federal sentencing laws are in grave need of reform.” In addition to prosecuting federal criminal laws, the Department plays a critical role in making recommendations to the President and Congress regarding criminal justice policy.

1. As such, we were disappointed that you neglected to respond to the following question: “Are there any federal criminal offenses carrying mandatory minimum sentences that you believe are unfair?” Please respond to this question.

1. Are there any federal criminal offenses carrying mandatory minimum sentences that the Department believes Congress should amend to ensure that offenders are not subject to sentences that are not commensurate with the seriousness of their offense?

2. In our previous letter, we asked the following question, which you did not answer: “Pursuant to the Department’s new policy, prosecutors are allowed to apply for approval to deviate from the general rule that they must pursue the most serious, readily provable offense. The memo, however, does not explain how the Department will decide whether to grant approval to deviate from the general rule. What factors [does] the Department consider in making these decisions?” Please respond to this question and additionally please provide any documentation or memoranda detailing the Department’s decision-making factors and process.

3. Has the Department provided any guidance to U.S. Attorney’s Offices regarding implementation of the new charging policy and when it is appropriate to deviate from the policy? Please provide any such guidance.

4. Since the implementation of the new policy, how often have prosecutors requested approval to deviate from the Department’s charging policy?

5. Since the implementation of the new policy, how many requests to deviate from the Department’s charging policy been granted? How many have been denied?

6. Please provide the number of drug offenders who were eligible for a mandatory minimum offense, but whose cases the Government chose not to file as a mandatory minimum offense (i.e. where the drug quantity or type that would trigger a mandatory minimum were not charged) since the implementation of the new policy.

7. Please provide the number of drug offenders who were eligible for a mandatory minimum recidivist enhancement based on a prior drug conviction, but for whom the Government chose not to file or allege the eligible prior conviction pursuant to 21 U.S.C. § 851 since the implementation of the new policy.

8. Please provide the number of drug offenders charged with a mandatory minimum, but for whom the Government chose to dismiss before trial or sentencing the: (1) entire case, (2) mandatory minimum triggering drug quantity and type, or (3) recidivist enhancement, since the implementation of the new policy.

9. In a June 2017 Office of the Inspector General (OIG) Report reviewing the Department’s charging policies, the OIG recommended that all U.S. Attorney’s Offices be required to collect charging data to enable the Department to determine whether its charging and sentencing policies are being effectively implemented.

1. What steps has the Department taken to comply with this recommendation?

1. The OIG Report noted that the Department’s Legal Information Office Network System (LIONS), for example, allows federal prosecutors to track information on recidivist enhancements that are charged, but that federal prosecutors were not required to track this data. Does the Department now require federal prosecutors to track this data? Why or why not?

Thank you for your attention to this important matter. We look forward to your prompt response.

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