Reportedly, Attorney General Jeff Sessions is calling for his prosecutors to -- as a matter of course -- seek
the harshest possible charges with the longest possible prison terms when prosecuting cases.
Well, actually, that's not quite what he said.
The policy memo says prosecutors should “charge and pursue the most serious, readily provable offense” — 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. The memo concedes there will be cases in which “good judgment” will warrant a prosecutor to veer from that rule. But any exceptions will need to be approved by top supervisors, and the reasons must be documented, allowing the Justice Department to track the handling of such cases by its 94 U.S. attorney’s offices.
Mandatory minimums are a problem. Sessions, as a former lawmaker, bears some of the responsibility for that problem, but certainly not all of it. The heuristic that one should usually pursue the "most serious, readily provable" crime isn't even a bad standard: if a serious crime isn't readily provable don't pursue it, but if it is then of course it's your job to nail criminals for their serious crimes.
I would have left a lot more room for that "good judgment" exercise by lower-level officials, rather than requiring high-level officials to sign off on such uses of judgment. Still, it's not an unreasonable policy on its face.
What makes it a problem is, then, the mandatory minimums that exist in the law. That's a problem for legislators, not the Justice Department. I agree with the analysis that such minimums are not appropriate as a general principle. Nevertheless, it's not on the Justice Department to refuse to enforce the law when a crime is "readily provable" just because the law is badly written. It's on Congress to fix the law.
UPDATE:
My congressman, Doug Collins of Georgia's Mighty 9th, is working on trying to reform the laws in the way I'm discussing here. Specifically, he is focused on dealing with
the mental health aspects of crimes. Collins is a former Air Force chaplain whose father was a state trooper.
"I've spent a lot of time with our sheriffs and going to our jails. One question I always ask is, 'How many in your jail would you classify as mental health or addiction issues?' The answer is that it ranges from about 35-40 percent of incarcerated individuals in some jails."...
"We're looking at the whole issue, at folks dealing with serious mental issues, but also from an economic perspective, the money perspective, making the best use of taxpayer dollars to not just incarcerate folks without getting them help," he added.
Mandatory minimums aren't the right answer to these issues. They might be to some issues -- I think I broadly approve of Project EXILE's moves to punish drug gangs who use guns with harsh penalties, as at least it pulls these kids off the street until they're too old to go around gunning each other down (as well as, being untrained thugs, often innocent people who were proximate to their targets). But there are many cases in which these mandatory minimums should be rethought by Congress.