Jeff SessionsTells Top Prosecutors: Hold Off on Doing Justice

Attorney-General Jefferson Beauregard Sessions III as good as ordered his underlings to sometimes be unethical. 

In his May 10 memo to US Attorneys nationwide, he trampled on what holds prosecutors to higher standards than ordinary lawyers.  Prosecutors must not only win cases, but they must also see that justice be done.  Sessions pretty much said forget about that until later, putting decent-minded prosecutors in a bind.

“It is a core principle,” Sessions directed, “that prosecutors should charge and pursue the most serious, readily provable offense.”  In other words, accuse a suspect of the worst thing you can right off the bat.  As sensible as that sounds, it runs afoul of professional ethics in many jurisdictions, not to mention the Justice Department’s own manual for prosecutors.

Others have more than adequately observed that this amounts to a roll-back of the Obama Administrations’s commitment to fairness in sentencing.  It brings back over-the-top prison sentences that persecuted people of color disproportionately.  But what really gets my dander up is what Sessions did to the citizens who steer our national justice system firsthand:  federal prosecutors.

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The real core principle guiding the Department of Justice is that justice be done.  In state after state, and even our nation’s capital, ethics rules warn that “A prosecutor has the responsibility of a minister of justice and not simply that of an advocate.”  And Sessions’s predecessor, Eric Holder, told U.S. Attorneys that “prosecutors must individually evaluate the unique facts and circumstances and select charges and seek sentences that are fair and proportional.”  It is the prosecutor’s role to bring suspects to justice – fairly.

This is why the DOJ’s manual itself lists things that a prosecutor must consider, even if a crime seems provable.  For example, a prosecutor may consider national justice priorities, how non-serious the crime is, how small a role a suspect played, and whether the suspect had a criminal record. All these factors matter in seeing that justice be done.  It is therefore sensible – and ethical – for a prosecutor to weigh them early on.

This week, however, Sessions said to never mind all that and through the book at every poor slob dragged in handcuffs through the jailhouse door.

This cannot be healthy.  Public trust in law enforcement and prosecutors depends on people feeling that the system is fair.  Being vengeful is corrosive of the public trust.  As explained to PoliticusUSA by Mark Zaid, a leading national security lawyer and critic of government malfeasance, the Sessions memo “reinforces the notion world-wide that the US is vindictive rather than rehabilitative when it comes to our criminal justice system. Rather than address our need for criminal justice reform in a positive manner it will only exacerbate the many problems we have.”

It is not enough for Sessions to pronounce from on high that his directive is “moral and just.”  Ethics and the need to seek true justice existed long before he came to office and will endure despite his orders.  Hopefully.