In a policy memo issued May 10, Attorney General Jeff Sessions told federal prosecutors he was rescinding “inconsistent” guidance his predecessor, Eric Holder Jr., issued four years earlier on what information should be included in filing drug charges.

Holder’s policy, issued in August 2013, changed Department of Justice policy on how federal prosecutors analyze and plead criminal cases, with the goal of not triggering mandatory minimum sentences or enhanced penalties in low-level drug cases.

Terming his policy pronouncement part of a “smart on crime” initiative, Holder directed federal prosecutors to use less strict charging and sentencing procedures for some drug offenses. The initative directed prosecutors filing drug charges not to include information — such as the quantity of drugs seized — which might trigger stringent mandatory minimum sentences when bringing charges against nonviolent individuals not linked to gangs or large-scale drug organizations. Holder’s policy memo also ordered each U.S. attorney’s office to draw up locally-tailored guidelines on when federal drug charges should and should not be filed.

In contrast, Sessions’ new guidance tells federal prosecutors it will be a “core principle” for the DOJ to bring the most serious criminal charges they think provable against most defendants.

That change reverses Holder’s instruction not to bring drug charges that are likely to force mandatory minimum sentences to be invoked if a nonviolent, low-level defendant is convicted, which in turn could result in more inmates in federal prisons with longer sentences.

Sessions’ new memo acknowledges the possibility that the circumstances of a case might call for a less strict application of that basic charging policy, but still requires prosecutors to weigh carefully whether an exception is justified.

It continues the DOJ’s policy of requiring such variances to be approved by a U.S. attorney, an assistant attorney general, or their designees, and to be documented in the case file. Recently installed Deputy Attorney General Rod Rosenstein was assigned responsibility for overseeing how the new policy is implemented and for issuing any needed further guidance or clarification.

Unsurprisingly, the new policy quickly drew strong criticism, both from DOJ figures from the Obama administration and from criminal justice reform groups. Former Attorney General Holder, much of whose self-styled “smart on crime” policy was undone by Sessions’ action, termed the new policy “dumb on crime,” rather than tough on crime.

He added that the new policy announced by Sessions pays no heed to “a rare bipartisan political consensus” for sentencing reform and instead would revert to “a discredited past.” The policy reversals set by Sessions would be “substantively and financially ruinous,” with DOJ spending a third of its budget on incarceration, and not on “preventing, detecting or investigating crime.”

Critics of the change also noted that, during the time Holder’s sentencing and charging reforms were in effect, the population of federal prisons declined from 219,000 inmates in 2013 to 192,000 last year. Holder himself said that while DOJ brought fewer indictments subject to mandatory minimum sentences while under his command, it put greater emphasis on defendants in major drug cases, and plea bargains remained at about the same level.

The Sessions policy change was also slammed by some members of Congress and groups supporting reducing or ending mandatory minimum sentences, but it drew praise from some law enforcement groups.

Christopher Zoukis is the author of Federal Prison Handbook: The Definitive Guide to Surviving the Federal Bureau of Prisons, College for Convicts: The Case for Higher Education in American Prisons (McFarland & Co., 2014) and Prison Education Guide (Prison Legal News Publishing, 2016). He can be found online at ChristopherZoukis.com and PrisonerResource.com.

About Christopher Zoukis, MBA

Christopher Zoukis, MBA, is the Managing Director of the Zoukis Consulting Group, a federal prison consultancy that assists attorneys, federal criminal defendants, and federal prisoners with prison preparation, in-prison matters, and reentry. His books include Directory of Federal Prisons (Middle Street Publishing, 2020), Federal Prison Handbook (Middle Street Publishing, 2017), Prison Education Guide (PLN Publishing, 2016), and College for Convicts: The Case for Higher Education in American Prisons (McFarland & Company, 2014).