It May Take Years for Sessions’ Prosecution Order to Play Out

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How big a deal is Attorney General Jeff Sessions’ memo to federal prosecutors about filing the most serious charges in drug cases? “This is a critical question that really cannot be answered for years,” Ohio State University law Prof. Douglas Berman says in his Sentencing Law & Policy blog. Citing the research of Fordham law Prof. John Pfaff, Berman says that how prosecutors act has a great deal to do with who goes into prison and for how long. New DOJ instructions about how federal prosecutors must do their work would seem to be a very big deal, Berman says, although the federal criminal justice system imprisons under 10 percent of all those subject to prosecution throughout the U.S.

Former Attorney General Eric Holder issued at least three significant guidance memos to federal prosecutions, starting in 2010, but federal charging practices did not appear to change all that much until after Holder in 2013 delivered aggressively the message that DOJ was now taking a much different approach to drug cases and others. It was only when Holder fully doubled down, in speeches and policy directives, on charting a much different prosecutorial path the numbers in the federal system saw some real significant movement. Similarly, it could take a while for Sessions’ memo to have much impact, Berman says.

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