Jeff Sessions wants blanket maximum sentences: Here’s why that’s a bad idea
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Anything that is automatic in criminal justice is a bad idea.

Attorney General Jeff SessionsJefferson (Jeff) Beauregard SessionsThe Hill's Morning Report — Presented by the American Academy of HIV Medicine — Trump, Congress prepare for new border wall fight The Memo: Trump and McCabe go to war McCabe book: Sessions once said FBI was better off when it 'only hired Irishmen' MORE earlier this month made a move that disturbed many in the criminal justice system — including U.S. attorneys and line prosecutors. He directed all Justice Department prosecutors to indict all defendants on the highest charges available, charges designed to result in the longest sentences possible under the sentencing guidelines.

This is a definite retreat from the Obama administration’s charging policies, and it is generally wrongheaded. Although the breadth of its wrongheadedness is better left for another day, suffice to say that any across-the-board, blanket policy “toughness” stands as a roadblock to the important notion of individualized justice. 

Not every defendant is the same, nor should they be treated as such.

The attorney general’s rollout was obviously designed to underscore — and accomplish — an overall program of toughness on crime. The department would invariably argue that such a virtually inflexible rule is vital to gaining the cooperation of criminal defendants who might be more inclined to “turn” on their confederates. Certainly a possibility, particularly in instances involving terrorism and other violent criminal behavior and, to the extent that is Sessions’s true purpose, he may be right, albeit in limited instances.


To (over)generalize, virtually the only way for a criminal defendant — particularly a high-crime criminal defendant — to gain maximal sentencing leniency is to cooperate, particularly if his associates posed a physical danger to him and his family. It appears that the existence of such a threat makes judges, more than anything, disposed to granting significant sentencing leniency — the defendant has cooperated notwithstanding the potentially dire consequences. So, the argument might go, if a criminal defendant is charged with the most serious crime possible, his incentive to “spill his guts” will invariably increase exponentially, given the lighter sentence he will likely face.


Of course, we have the likelihood that the Justice Department will, consistent with Sessions’s policy directive, be putting more death penalty counts on the table to encourage defendants to be more “pliable” — you know, “tell us what you know and we let you live.” Any lawyer worth her salt will counsel cooperation in such circumstances, especially when the defendant actually has the goods to give. And while everyone reflexively hates the “tattler,” the “snitch,” the “stool pigeon” or the “rat,” the cooperation protocol may be the only realistic way for a defendant to proceed when the stakes are so high. And, perhaps parenthetically, it may also be the only way for the government to get the information it needs.

A classic case, which thus far has received scant attention, was reported in The New York Times on May 16. One Bryant Neal Vinas, a Queens-born U.S. citizen, traveled to Pakistan in 2007 to engage in jihad against the U.S. There, he joined al Qaeda, participated in rocket attacks against U.S. military bases, received training in weapons and explosives, and discussed plans to actually blow up the Long Island Railroad and other locations. Blow up the Long Island Railroad — what else is there to say? — Osama bin Laden wanted Vinas on every recruiting poster. When caught (and after trial), Vinas should have been sentenced to the highest crime possible with the key (if not syringe) thrown away. No one, except a devoted death penalty abolitionist, would disagree with that.

But here’s where the rubber meets the road.

Vinas’s cooperation with the U.S. government after his arrest was extraordinary, despite the risk of retaliation at the hands of al Qaeda. He spent hundreds of hours in interviews, looking through thousands of documents and photos. By the time of sentencing, he had already spent eight years behind bars while providing invaluable information. His lawyers argued for “time served,” while the government wrote a 21-page letter to the court detailing the ways in which Vinas had assisted the government (the public version of the letter is largely redacted). Vinas’s assistance and cooperation against al Qaeda led Judge Nicholas Garaufis of the Eastern District of New York to sentence him to only three additional months in prison.

Essentially, his extreme cooperation allowed for a total prison term of roughly eight years (with life-long supervision), having been in custody since his 2008 arrest, whereas he could easily have been sentenced to life imprisonment, or death. And assuming Vinas wanted to be able to live (he was only 26 when he was arrested), he knew that cooperation was the only way to go.

Is this “cooperation” system ideal? Surely not. Vinas, given the things he did and was willing to do in the name of al Qaeda, probably did — at least when caught — deserve the toughest possible sentence. Still, anyone who has ever prosecuted a case knows that the lifeblood of criminal enforcement is defendant cooperation. Without it, the government’s enforcement efforts would be at standstill. And without potentially extremely harsh sentences, cooperators won’t come forward to “sell their wares” in order to gain leniency.

Although, as he publicly acknowledged at sentence, Garaufis extended that leniency to Vinas with great trepidation, it was clearly the way to go, especially given the government’s description of Vinas having provided “unparalleled insight into the internal and external operations of al-Qaeda.” 

Perhaps more important, the leniency accorded to Vinas may very well make an important statement to the next guy, and the guy after him, who faces the dilemma of whether or not to spill his guts.

Sessions is wrong about automatic “highest count possible” justice in all cases. But when it comes to violent or terrorist behavior, maximum punishment — and inducement for cooperation — is likely the way to go, assuming the exercise of “individualized” prosecutorial discretion before the government makes its final charging decision.


Joel Cohen practices criminal defense law at Stroock & Stroock & Lavan LLP in New York. He is the author of "Broken Scales: Reflections on Injustice" and regularly lectures and writes on law, ethics and social policy for the New York Law Journal and other publications. Dale J. Degenshein of Stroock assisted in preparing this article and contributed to "Broken Scales."

The views expressed by contributors are their own and are not the views of The Hill.