Criminal Justice

Justice Department Rescinds Trump-Era Memo Ordering Prosecutors To Seek Harshest Sentences

The memo reverses a directive from former Attorney General Jeff Sessions that ordered federal prosecutors to throw the book at low-level drug offenders.

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The Justice Department has rolled back a Trump-era memo that directed federal prosecutors to seek the harshest charges and sentences available to them.

In a memorandum released today, reported by HuffPost, acting Attorney General Monty Wilkinson rescinded a 2017 memo that ordered federal prosecutors to seek the toughest charges and maximum possible sentences on the books.

"The goal of this interim step is to ensure that decisions about charging, plea agreements, and advocacy at sentencing are based on the merits of each case and reflect an individualized assessment of relevant facts while longer-term policy is formulated," Wilkinson wrote in the memo.

In 2013, former Attorney General Eric Holder ordered federal prosecutors to avoid charging certain low-level offenders with drug charges that triggered long mandatory sentences. The directive was an attempt to mitigate some of the notoriously harsh drug sentences that the federal guidelines and sentencing laws created.

In 2017, however, former Attorney General Jeff Sessions, a staunch defender of mandatory minimum sentences, rescinded Holder's memo, giving prosecutors the green light once again to hammer drug offenders. Prosecutors who wished to depart from this guidance were required to get a supervisor's approval.

"We are returning to the enforcement of the laws as passed by Congress, plain and simple," Sessions said in a speech at the time. "If you are a drug trafficker, we will not look the other way, we will not be willfully blind to your misconduct."

Sessions blamed Holder's 2013 "smart on crime" initiative for a national rise in crime in 2015 and 2016. This claim was absurd on its face; Holder's memo may have led to shorter sentences for only around 500 federal drug offenders each year.

"The Acting Attorney General's interim guidance replaces a directive that made it more difficult for prosecutors to exercise their traditional discretion and to pursue justice on a case-by-case basis," a Justice Department spokesperson said in a statement to Reason. "The interim guidance returns to the well-established approach of emphasizing that prosecutorial decisions should be made after a careful consideration of the particular facts and circumstances of individual criminal cases."

The Biden administration has already started rolling back other Trump-era criminal justice policies. Earlier this week, President Joe Biden signed an executive order directing the Justice Department not to renew any contracts with private prisons. 

Other Trump-era Justice Department policies could also be on the chopping block. For example, Sessions also rolled back Obama-era Justice Department guidance on civil asset forfeiture that restricted when federal authorities could "adopt" local cases. Such adoptions are one of the primary ways state and local police get around stricter state laws on civil asset forfeiture, which allows police to seize property suspected of being connected to criminal activity even when the owner is not charged with a crime.

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  1. They might want to have waited until the sedition and insurrection charges had been filed.

    1. It’s just “guidance” in a “memo” that the DOJ can ignore at its leisure and apply arbitrarily. They’ll still throw the “insurrectionists” in prison for life — that is, if they ever decide against publicly executing them while live streaming it on Twitter.

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    2. I believe that was a separate EO that specifically addressed vandalism on Federal property.

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  2. In other words, the Biden administration is doing some things that libertarians approve of. I guess you didn’t have to point that out, but you could have.

    1. Don’t worry, the gulags and death camps are coming any day now. It is known.

      1. We’re 10 days in and they just arrested a guy for posting memes.

        1. They arrested a guy for attempting a fraudulent scheme to steal votes.

          1. You can describe a meme however you wish. It will still be a meme.

          2. By text.

            You can’t text a vote so how could it be stolen? Even if the person who texts the vote is too stupid to know you can’t vote by text their vote is still available for them to cast if they want to.

            If one doesn’t know HOW to vote correctly perhaps one shouldn’t be voting at all.

          3. Actually, we had this debate in another thread yesterday. Looks like you are still in the same hole waiting for rain.
            I’m out.

      2. True story.

  3. BREAKING: Government Agent Whose Altered Email Enabled the Russia Hoax Won’t Spend a Day in Jail or Pay Any Fine
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      1. There’s a gentler set of rules for the inner party.

    2. Of course he won’t. He’s a petty noble but a noble none the less, and laws apply to the peasantry, not the nobility.

  4. This is obviously terrible news because Biden did it! If Trump did it it would be awesome!

    1. Well, note that when Reason posts an article that shows that Biden isn’t a completely horrible monster, that the knee-jerk response in the comments from the usual suspects, is to change the subject? Then tomorrow Biden will do something terrible, and the tune will again be SEE? SEE? I TOLD YOU BIDEN WOULD BE TERRIBLE, BUT YOU DIDN’T LISTEN, NOOOOO

    2. Biden didn’t do it.

    3. It’s not that, it’s just that it’s hard for us to believe Biden had any such sentiment. He probably didn’t, this was prepared for him. Of course that’s true of many of Trump’s actions too.

  5. I thought that’s what prosecutors routinely do anyway, without saying.

  6. Sessions was such a piece of shit. Trump’s biggest mistake in his first two years, was listening to the GOPe on his appointments.

  7. “an individualized assessment of relevant facts”

    “Like, is he one of ours, one of theirs, or just some random prole?”

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  9. “Justice Department Rescinds Trump-Era Memo Ordering Prosecutors To Seek Harshest Sentences”

    V. P. Harris apparently not consulted.

    1. Nah you still don’t have to commit a crime to be found guilty. The determinate of your guilt is how you vote

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  11. “The Justice Department has rolled back a Trump-era memo that directed federal prosecutors to seek the harshest charges and sentences available to them.”

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