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Federal criminal defense – Trump’s attorney general goes full throttle for the highest sentencing ranges

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Northern Virginia/ Fairfax criminal defense lawyer on federal prosecutorial tough on crime effforts

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Martin Sheehan’s presidential candidate character in Dead Zone reminds us how critical it is to carefully vet our political candidates before we make the blunder of electing the wrong ones. 

Donald Trump and Martin Sheehan’s Gregg Stillson in Dead Zone share the important parallels of whipping up crowds with demagogic rantings, power hunger, and egomania. Unlike Trump and despite Stillson’s readiness to launch nuclear war to fulfill his “destiny”, Stillson is intelligent enough — yet still mentally unsound — to understand the world and the consequences of his actions. Trump, on the other hand, exists in a bubble of distortion, in over his headTweeting unfiltered early in the morning, abdicating the essential judge-picking role to right-wing Heritage Foundation influence, reverting to Nixonian audiotaping from the Oval Office (why else would he threaten former FBI director James Comey about audiotapes?), and swinging like a pendulum from disagreeing with Comey’s decision not to prosecute Hillary Clinton to praising Comey to going lukewarm on him to blasting Comey soon after firing him and then taunting him on Twitter.

In the black-and-white delusion that Trump inhabits, he will continue to afford his attorney general Jeff Sessions wide discretionary latitude so long as Sessions continues pursuing the tough on crime mantle, which Sessions will always do. That tough on crime approach likely is a key reason Trump nominated Sessions in the first place, even though the Justice Department’s key work includes plenty of non-criminal matters. (To the extent that Sessions opposes hate crime laws, I also oppose them, and Eugene Volokh provides some good reasons for opposing them.)

Consequently, it came as no surprise — but disappointing nonetheless — when this week Sessions reversed course on the Obama administration’s efforts to reduce efforts to seek the maximum possible sentencing ranges against non-violent drug dealers. This week’s memorandum (text here) on the topic from Sessions to federal prosecutors tells prosecutors to go full throttle in assuring that criminal charges against defendants include the counts that will bring the lengthiest sentences, to pursue substantial sentences, and to get supervisory authorization to deviate from that.

What does this Sessions memo mean for criminal defendants? It means that it is all the more important for their lawyers to work with their clients to keep their drug, robbery and child pornography state prosecutions in state court — sometimes meaning reaching quicker state plea deals if the deals involve assurances of no federal prosecution — to avoid the prosecution being removed to federal court when the federal court penalty exposure is harsher, or to avoid being prosecuted in parallel fashion under the separate sovereigns doctrine.

Does the Sessions memo also mean that federal criminal defendants who act as snitches might not get as much prosecutorial leniency and requests to the court for sentencing leniency with the counts they are offered to plead guilty to, with the sentencing range sought by prosecutors, and with requests for judges to sentence below mandatory minimum sentencing?

I did not see Barack Obama nor his Justice Department as prizes for criminal defendants, but at least Obama understood in his heart of hearts the harshness of the federal sentencing scheme, and the importance of reducing sentencing for some non-violent drug offenders, and with narrowing sentencing disparities between convictions for powder cocaine and crack cocaine.

A common litigation career path for lawyers is to attend a prestigious law school or get great grades and legal publication experience at another law school, proceed to clerking for a federal judge, next working as an assistant United States attorney (whether doing criminal prosecution or civil litigation work), and then joining a prestigious corporate law firm. Another such path is ultimately to clerk for a judge, become a state-level prosecutor and then use that experience to be hired at a private law firm or to become one’s own boss while trying to parlay that prosecutorial experience into obtaining paying clients. At what point does a lawyer become so uncomfortable or disgusted with the obligations of his or her job — for instance as a prosecutor — that s/he refuses to accept or continue with that job? Or, will most lawyers on such a career path simply shrug their shoulders and say that they are not about to let such discomfort upend their path to their holy grail?