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Meaningful federal sentencing reform was recently a widely bipartisan-backed issue.[1] Sensible reform was gaining steam and a path forged to reduce the burgeoning prison population of low-level drug offenders. But with the Attorney General’s recent memo to all federal prosecutors, the hope for such reform in the near future is all but dead.

The Attorney General’s memo directs federal prosecutors to “charge and pursue the most serious, readily provable offense.” You may think: what is so wrong with that? Isn’t that what prosecutors are supposed to do? The issue is that it makes prosecutors mechanical. It takes out any kind of discretion they have when resolving the case and doing what is fair. This memo virtually makes federal prosecutors robots. Any deviation from the directive must be approved by a supervisor and “justified by unusual facts.” For those prosecutors who want to keep their job, is anyone really going to stick their neck out and deviate?

The most damaging part about the Attorney General’s memo is not directing prosecutors to charge the most serious offenses, but the manner in which they request application of mandatory minimum sentences. The memo specifically rescinds two previous policies from 2013 and 2014. The former policy allowed prosecutors to make individualized assessments when charging to go after the more serious drug offenders, which aimed to reduce the overflowing prison population of non-violent low-level drug offenders. What made these policy directives so widely acclaimed across the aisle is not only because of fairness, but also because incarceration cripples the Department of Justice’s budget. Instead of overflowing federal prisons with low-level drug offenders, the department could be spending its money on hiring more federal agents and investigations for more serious crimes.

To rescind these policies and direct contrary objectives seems to only advance an appearance of being “tough on crime.” The absurd results of such an appearance are already known as it applies to mandatory minimum sentences for low-level drug offenders. “Those who cannot remember the past are condemned to repeat it.”[2] Either that, or they know history remarkably well and frankly do not care if it repeats itself, which is scary.

The need for meaningful sentencing reform at the federal level is real all political parties know this. While current policies are dashing the hopes of reform in the near future, there are many that will continue their efforts to get back on the proper, and just, track.

Robert H. Ambrose is a criminal defense attorney in Minneapolis and St. Paul. He was named a Rising Star by SuperLawyers in 2017 and 2016; is a Top 40 Under 40 National Trial Lawyer the past three years; and is a member of the National College of DUI Defense. Federal Criminal Defense MN; St. Paul Criminal Defense Attorneys; and St. Paul DWI Lawyer.

[1] We previously blogged about President Obama’s law review article on criminal justice reform here and federal and juvenile sentencing reform here.

[2] George Santayana.

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