Washington, D.C. — On Friday, Attorney General Jeff Sessions issued a directive to U.S. Department of Justice prosecutors and staff, instructing them to “charge and pursue the most serious, readily provable offense” that yields the most substantial sentence. This change overturns previous guidance under the Obama administration Justice Department that allowed prosecutors to consider the individual circumstances of the case to determine the most appropriate charge and sentence, instead of always aiming to secure the harshest penalties. The policy announced by Attorney General Sessions brings back the failed policies of the Bush administration, which led to unsustainable federal incarceration levels and contributed to the perpetuation of mass incarceration that especially affects communities of color. Ed Chung, vice president for criminal justice reform at the Center for American Progress, issued the following statement in response to the news:

Attorney General Jeff Sessions took a stance today against proven, evidenced-based criminal justice reform policies. By rigidly requiring federal prosecutors to charge the most serious crimes that would result in the harshest penalties, Sessions’ policy would indiscriminately characterize all offenders by the most serious offense that can be proven in court, instead of what is appropriate based on the individual merits of the case. This means that those who are nonviolent but commit low-level offenses will be treated as severely as possible even if, in the prosecutor’s judgment, the most just result would be a more lenient sentence or an alternative to incarceration.

These policies do not work. They have been tried before and failed. The key phrase in the Sessions memorandum—“charge and pursue the most serious, readily provable offense”—is taken almost verbatim from a similar document issued by then-Attorney General John Ashcroft in 2003. Over the next decade, the federal inmate population swelled to nearly 220,000 and consumed almost one-third of the Justice Department budget with no appreciable effect on public safety. Thanks to Smart on Crime policies instituted under the Obama administration, the Justice Department reversed that trend in 2013 by focusing on prosecutions of the most serious cases and deprioritizing low-level offenses. The Federal Bureau of Prisons population sits below 190,000 today.

The actions by the Department of Justice this morning go against the bipartisan tide of criminal justice reform efforts across the country. States as diverse as North Carolina, Oregon, and Nebraska have reduced mandatory minimum sentences and similar sentencing enhancements. Even the attorney general’s home state of Alabama recently enacted modest reforms that prioritize prison space for those who commit the most violent and dangerous offenses.

Instead of inflexibly holding onto so-called tough on crime policies, the attorney general should consider the wealth of research and evidence from states that show it is better to be smart on crime.

Related resources:

• Smart on Crime: An Alternative to the Tough vs. Soft Debate by Ed Chung
• Beyond ‘Law and Order’ by Ed Chung and Danyelle Solomon
• The Trump Administration Is Putting DOJ Policing Reform Efforts at Risk by Ed Chung

For more information or to speak to an expert on this topic, please contact Rafael Medina at rjmedina@americanprogress.org or 202.478.5313.