Those Were the Days, . . . . Still, There Might Be a Bone They’re Throwing Us . . .

July 11, 2017
By Hanging Out with Carl Gunn


  • The new Attorney General has revoked the Holder memos limiting use of mandatory minimums and gone back to the old “most serious, readily provable offense” standard.
  • There is a caveat in the “Sessions Memo,” also reiterated in a speech he recently gave, implying prosecutors do have some discretion if necessary to avoid a sentence that would “result in injustice.”
  • There’s also still people trying to change the law in Congress, where several Congressmen and Senators have reintroduced the “Justice Safety Valve Act,” which would allow courts to impose sentences below mandatory minimums when required by the § 3553(a) factors.



As we mourn our more general loss last November (cf. “Construing ‘Great’ in ‘Make America Great Again’” in the November 2016 link at the right), we’re also mourning a loss more specific to our work.  Over the last several years of the Obama administration, we saw (1) proposed bipartisan legislation to ameliorate mandatory minimum sentences and other harsh sentencing laws and (2) new policies from Attorney General Eric Holder allowing – indeed, directing – line prosecutors to use judgment and exercise prosecutorial discretion by limiting use of some of the harsh sentencing provisions even without actual statutory amendments.  (See “Is There Some Real Change Going to Happen Out There?” in the January 2014 link at the right, “The Holder Memo: Is It a Double-Edged Sword?” in the February 2014 link, “We Can Keep on Dreaming” in the March 2015 link, “If You Really Want to Dream . . .” in the July 2015 link, and “Maybe We Don’t Need to Worry. . . . Well, if They Do What Their Bosses Say” in the September 2015 link.)

All this hope has seemed dashed with Trump getting elected and the appointment of one of the most hawkish senators on sentencing, Jeff Sessions, as the new Attorney General.  Sessions lost little time in revoking the Holder memos and retrenching to what we called the “Ashcroft memo” in Bush II’s administration.  This “Sessions Memo,” which is attached in full here, states:

[I]t is a core principle that prosecutors should charge and pursue the most serious, readily provable offense.  This policy affirms our responsibility to enforce the law, is moral and just, and produces consistency.  This policy fully utilizes the tools Congress has given us.  By definition, the most serious offenses are those that carry the most substantial guidelines sentence, including mandatory minimum sentences.

The memo then goes on to state, lest there be any doubt, that “[a]ny inconsistent previous policy of the Department of Justice relating to these matters is rescinded, effective today” and cites the Holder memos in a footnote.

I won’t pretend there’s a lot of hope left, but I did want to share a couple of glimmers, albeit very faint ones, that are left and that you might try to use with fair minded line prosecutors (and/or their supervisors).  First, the Sessions memo itself has a paragraph immediately following the “most serious, readily provable offense” paragraph that contains this caveat:

There will be circumstances in which good judgment would lead a prosecutor to conclude that a strict application of the above charging policy is not warranted.  In that case, prosecutors should carefully consider whether an exception may be justified.  Consistent with longstanding Department of Justice policy, any decision to vary from the policy must be approved by a United States Attorney or Assistant Attorney General, or a supervisor designated by the United States Attorney or Assistant Attorney General, and the reasons must be documented in the file.

And in a speech given two days later, available directly on the DOJ website here, and also downloaded and available here, Sessions suggested this allowed more prosecutorial discretion than the pre-Holder policies, stating:

Going forward, I have empowered [as opposed to required?] our prosecutors to charge and pursue the most serious, readily provable offense.  It means we are going to meet our responsibility to enforce the law with judgment and fairness.  It is simply the right thing to do.  But it is important to note that unlike previous charging memoranda, I have given our prosecutors discretion to avoid sentences that would result in an injustice.

(Emphasis added.)

There’s also still people in Congress trying to change the law, though that’s probably even less likely to get attention with a DOJ headed by Sessions and a Republican leadership focused on taking away health care, making rich people richer, etc.  The very short, simple “Justice Safety Valve Act” has been reintroduced in both the House – by Democrat Bobby Scott and Republican Thomas Massie – and the Senate – by Democrats Patrick Leahy and Jeff Merkley and Republican Rand Paul.  It’s attached here, but its key provision is short enough to be easily quoted.  It would add a subsection (g) to 18 U.S.C. § 3553 that provides in paragraph (1):

Notwithstanding any provision of law other than this subsection, the court may impose a sentence below a statutory minimum if the court finds that it is necessary to do so in order to avoid violating the requirements of subsection (a) [i.e., the 18 U.S.C. § 3553(a) factors].

There are then additional paragraphs which require the court to give notice before imposing such a sentence and to “state, in the written statement of reasons, the factors under subsection (a) that require imposition of a sentence below the statutory minimum.”

So (1) we can keep on dreaming about a new statutory way around mandatory minimums, though it’s even more of a long shot than it was before, and (2) there are some caveats to the Sessions memo that you can try to push on prosecutors.  So just like our little friend here, don’t give up.