Wnited States Senate WASHINGTON, DC 20810 June 7, 2017 ‘The Honorable Jeff Sessions Attorney General of the United States US. Department of Justice 950 Pennsylvania Avenue, N.W. Washington, D.C. 20530 Dear Attomey General Sessions: We write concerning the Department of Justice’s May 10, 2017 memorandum directing federal prosecutors to “pursue the most serious, readily provable offense.”! The Department's new policy ignores the growing bipartisan view that federal sentencing laws are in grave need of reform, In many cases, the new policy will result in counterproductive sentences that do nothing, to make the public safer. And it appears to force the hand of the prosecutors closest to each case to seek the highest possible offense rather than enable them to determine an appropriate lesser charge, which can help guard against imposing excessive sentences. ‘The Department's policy is based on the premise that “[i]t is of the utmost importance to enforce the law fairly and consistently.”? We agree with this principle. The problem is that, in many cases, current law requires nonviolent first-time offenders to receive longer sentences than violent criminals. Sentences of this kind not only “[undermine] respect for our legal system,"> but also ruin families, have a corrosive effect on communities, and are not likely to reduce recidivism. Cases like those of Weldon Angelos, Alton Mills, and others counter the Department's claim that, “[b]y definition, the most serious offenses are those that carry the most substantial guidelines sentences.”* Equally troubling, the policy overvalues consistency at the expense of an individualized assessment of the appropriate penalty by likely reducing prosecutors’ discretion to decide which charges are appropriate to pursue. To be sure, the text of the policy allows for exceptions to the general rule that prosecutors must pursue the most serious, readily provable offense. But any deviation requires supervisor approval and a written explanation of the reasons for the departure, which will likely deter prosecutors from pursuing departures if they know departures are disfavored by the Department. We therefore question whether this exception will be sufficient to censure that prosecutors are able to make an individualized determination as to the appropriate ' Memorandum to All Federal Prosecutors from Attorney General Jeff Sessions, at | (May 10, 2017) (hereinafter ‘Sessions Memo”) 2 Sessions Memo, at 1 31d. ‘ See, eg., Pew Charitable Trust, Time Served: The High Cost, Low Return of Longer Prison Terms, at 33-34 (June 2012); see also Stephanos Bibas, The Truth About Mass Incarceration, National Review (Sept. 2, 2015), http: /www.nationalreview.com/article/424059/mass-incarceration-prison-reform (“Any benefit from locking. nals up temporarily is more than offset by the crime increase caused when prison turns small-timers into career criminals. So conservatives’ emphasis on retribution and responsibility, even when morally warranted, can quickly become counterproduetive.”), * Sessions Memo, at | (May 10, 2017).sentence or to safeguard against overly harsh sentences imposed pursuant to the Sentencing Guidelines.® In an effort to better understand the basis of the Department’s policy change and to evaluate its likely effects, please answer the following questions: 1. The memorandum indicates that the Department's policy was made in an effort to “enforce the law fairly and consistently.” Did the Department conclude that its previous policy resulted in unfair application of the law? If so, what was the basis of the Department’s conclusion? 2. In developing the new policy, did the Department conduct a review to study the effect of its proposed changes on deterrence, public safety, and reducing recidivism? If so, please describe that review process. If not, please explain why the Department opted not to perform such a review. 3. The letter identifies the cases of several individuals. Does the Department believe the punishment fit the crime in those eases? Please explain why or why not. 4, Pursuant to the Department's new policy, prosecutors are allowed to apply for approval to deviate from the general rule that they must pursue the most serious, readily provable offense, The memo, however, does not explain how the Department will decide whether to grant approval to deviate from the general rule. What factors will the Department consider in making these decisions? How often do you anticipate that prosecutors will request approval to deviate from the Department's charging policy? How often do you expect such requests will be granted? Will Main Justice track how frequently attorneys seek departures from the new policy? 5. Are there any federal criminal offenses carrying mandatory minimum sentences that you believe are unfair? Do you believe that all applications of 18 U.S.C. § 924(c) result in fair sentences? If the answer to either of those questions is “no,” why do you believe the Department’ new policy allows enough discretion to individual prosecutors to result in fair outcomes in cases implicating these statutes? 6. Under the previous policy, prosecutors were expected to conduct “an individualized assessment of the extent to which particular charges fit the specific circumstances of the case.” Under the new policy, do you anticipate that fewer cases will receive individualized assessment prior to charging? Over the last several years, there has been much debate about the over-criminalization and over-incarceration problems we face in America. If the Department believes that it must charge the offenses that carry the most serious sentences, regardless of individual circumstances in most cases and despite evidence demonstrating that this is not the best approach to protect public safety, it only underscores the need to change the law. We appreciate your help as we seek © See Section I.B., Memorandum to All Federal Prosecutors from Attorney General John Asheroft (Sept. 22, 2003). * Memorandum to All Federal Prosecutors from Attomey General Fric H. Holder, Jr, at 2 (May 19, 2010).to clarify where and how we can improve the way we administer justice and look forward to your response by July 7, 2017. Sincerely, Safe & - EL Dieu Dest: Mike Lee Richard Durbin. United States Senator United States Senator Rand Ga Rand Paul yA. Booker United States Senator United States Senator