Win McNamee/Getty Images(WASHINGTON) — Attorney General Jeff Sessions sent a memo to all federal prosecutors Thursday night instructing them to pursue the “most serious, readily provable offense” for their cases. The most “serious” crimes are determined by which offenses carry the longest sentences, according to guidelines.

What’s new

Exceptions for what can be charged will only be allowed with approval from a U.S. attorney, an assistant U.S. attorney general or a designated supervisor. This takes away the discretion from prosecutors to charge a lesser offense but leaves some level of flexibility in place.

The “Sessions memo” replaces the so-called “Holder memo,” which was issued in 2013 under President Obama’s attorney general, Eric Holder.

Attorney General Sessions directs federal prosecutors to pursue the “most serious” charges possible in new policy memo pic.twitter.com/oVj8Fj4qNg

— Geneva Sands (@Geneva_Sands) May 12, 2017

Prosecutors will be expected to recommend a sentence within federal guidelines when before a federal judge. Recommendations outside of the guidelines require supervisory approval and a documented explanation. Prior to this memo, prosecutors did not have to get supervisory approval to recommend a sentence outside the guidelines. The idea is to do away with vague sentencing recommendations that vary across the country.

The new policy also requires prosecutors to disclose all the facts in court that could impact sentencing. For example, if someone is caught with 1,000 kilos of marijuana, which would kick in a mandatory 10-year minimum sentence, attorneys must now tell the court the full amount or marijuana. In the past, prosecutors could refrain from declaring the whole amount to the court so as not to trigger the mandatory minimum.

Potential impact

The changes will likely increase the number of people charged as well as the size of the federal prison population.

The Justice Department has already had conversations with the U.S. Bureau of Prisons about the need for flexibility with capacity in relation to immigration detainees, so U.S. officials are apparently aware they may need to increase prison space although at the moment federal prison population is at an all-time low.

As with immigration enforcement, the administration is taking the view that it will follow the law.

“We are returning to the laws as passed by Congress,” said Sessions while announcing the new guidelines.

Reaction

Former Attorney General Holder called the move “unwise and ill-informed” in a statement, adding that the policy is “is not tough on crime. It is dumb on crime.”

DOJ has taken an unwise step backward to discredited criminal justice policies. The need for reform still exists. pic.twitter.com/Q0GT99qYBz

— Eric Holder (@EricHolder) May 12, 2017

“In removing the discretion I vested in the men and women of the Department of Justice to seek justice for the unique circumstances that each case presents, this administration reveals its lack of faith in their judgment and integrity,” he wrote.

Udi Ofer, director of the American Civil Liberties Union’s Campaign for Smart Justice, said that Sessions is pushing federal prosecutors to repeat a failed experiment — the war on drugs.

“With overall crime rates at historic lows, it is clear that this type of one-dimensional criminal justice system that directs prosecutors to give unnecessarily long and unfairly harsh sentences to people whose behavior does not call for it did not work,” Ofer said in a statement.

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