When investigators come to a federal prosecutor with evidence of a crime, there are two ways the decision is made as to what charges, if any, should be filed. One is a grand jury proceeding, in which the prosecutor presents the facts and law to the grand jury and asks them to return an indictment. The other is a decision made directly by the prosecutor. In either situation, however, the prosecutor makes ethical and strategic decisions about what the appropriate charge would be, based on the evidence available.
If the Trump Administration gets its way, that may change. Instead of leaving charging decisions to prosecutorial discretion, the Department of Justice may issue new policy guidance urging them always to file the most serious charges they can prove in court.
The Associated Press obtained the information about the new policy guidance, which is currently being circulated in draft form. According to a person involved in the discussions, more than one version is being circulated and there is no timeline for it release yet.
Why would the administration urge prosecutors to be harder on defendants?
The Obama Administration also had policy guidance to offer: It urged U.S. Attorneys to leave prosecutions for possessing small amounts of marijuana to state and local authorities. This was in part a reaction to states legalizing cannabis for medical or recreational purposes. Another reason was an effort to reduce mass incarceration, which many believe is exacerbated by strict mandatory-minimum sentences for drug offenders.
This may be an intentional reversal of that policy. Before his service as Attorney General began, Jeff Sessions had long been an advocate for severe mandatory sentencing for drug offenders. He opposes broad sentencing reform and promised to double-down on the War on Drugs.
According to the AP, the policy guidance memorandum is not yet final. It does appear, however, that federal prosecutors may soon lose their independence and be ordered to crack down on drug crimes -- or possibly all crimes -- ruthlessly and with alacrity.