Attorney General Jeff Sessions hasn’t wasted any time enacting the principles of President Trump’s sensationalistic “law and order” approach to law enforcement at the Department of Justice. In a May 2017 memo, Sessions told prosecutors that they should be as aggressive as possible in every case. Assorted critics are now joined by a rather significant heavyweight, the American Bar Association. The ABA is calling on DOJ to bring its policies in line with the more reasoned theory of prosecution set out by the ABA, one founded in principles of justice.
Sessions’s mandate instructs prosecutors to ask only how harsh a charge, and how severe a punishment, can be pursued in a given case—rather than beginning from the question of what the most just charge and sentence would be. It erases prosecutorial discretion.
[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 ABA’s responsive resolution, passed Monday at the organization’s mid-year meeting, reiterated the principles that have traditionally animated prosecutors’ exercises of discretion.
That all prosecuting authorities should adopt and pursue charging policies that are consistent with the ABA Standards on the Prosecution Function (2015); assess each case individually to determine whether, under the totality of the circumstances -- including a defendant’s leadership role in the offense, use or threat of violence, significant criminal history, ties to large-scale criminal organizations or serious victim injury -- charging the most serious, readily provable offense is likely to achieve justice in the individual case; and prohibit filing of charges and recidivist enhancements simply to exert leverage to induce a guilty plea.
The ABA doesn’t expect the DOJ to heed its recommendation; more likely, the organization and its membership are seeking recognition—of any sort—from the administration.
Stephen Saltzburg of George Washington University Law School rose to speak in favor of the resolution, and said that the ABA was making the request with appropriate humility, rather than attempting to dictate to the Department of Justice.
“We care about a discussion, we care about a dialogue, and we care about all of us being dedicated to trying to get it right,” Saltzburg said.
Unfortunately, the likelihood of acknowledgement is little better than the likelihood of reform when it comes to Jeff Sessions.