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Despite AG’s Policy Change, OIG Reviews “Smart on Crime” Initiative

by Derek Gilna

In June 2017, the Office of the Inspector General (OIG) issued a report on the U.S. Department of Justice’s “Smart on Crime” initiative. Smart on Crime, instituted in 2013 under Obama-era Attorney General Eric Holder, “encouraged federal prosecutors to focus on the most serious cases that implicate clear, substantial federal interests” and to avoid over-charging low-level drug offenders, according to the report.

However, current Attorney General Jeff Sessions rescinded the initiative in a May 10, 2017 memo that undercut its central theme. He ordered federal prosecutors and law enforcement officials to disregard direction from the Obama administration and pursue charges that typically result in mandatory minimums.

“Prosecutors should charge and pursue the most serious, readily provable offense,” Sessions wrote. “The most serious offenses are those that carry the most substantial guidelines sentence, including mandatory minimum sentences.”

When it attempted to study the impact of the Smart on Crime initiative, the OIG discovered that its ability to do so was “limited because [prosecutors] do not consistently collect data on charging decisions ... [and in] the U.S. Attorneys’ Offices’ case management system, [which] allows federal prosecutors generally to track information about their cases, data fields relevant to Smart on Crime were not always present or updated.”

The OIG was able to compile some of the data needed for its report by using U.S. Sentencing Commission (USSC) data, but found that while the Department of Justice “issued policy memoranda and guidance to reflect its Smart on Crime policies, the U.S. Attorneys’ Manual (USAM), a primary guidance document for federal prosecutors, was not revised until January 2017, more than 3 years after Smart on Crime was launched, even though Department officials established a deadline of the end of 2014 to do so.”

Additionally, the report noted that only “74 of 94 districts had developed or updated their local policies to reflect the Smart on Crimepolicy changes,” further indicating a lack of uniformity in adhering to the initiative.

Notwithstanding that fact, the OIG found Smart on Crime had a positive impact in reducing sentence enhancements for drug offenders: “we found that the percentage of federal drug offenders with two criminal history points who were not subject to a mandatory minimum sentence increased from 44 percent in FY 2012 to 64 percent in FY 2015.” Also, with “regard to the use of recidivist enhancements, USSC estimates and OIG survey results indicated that such enhancements have become less common since Smart on Crime.”

The report recommended that the USAM be updated to accurately reflect Department of Justice charging policies, to mandate that local offices consult with “their law enforcement partners to ensure their policies are current and consistent with local prosecution priorities,” and to “require all U.S. Attorney’s Offices to collect charging data that will enable the Department to determine whether its charging and sentencing policies are being effectively implemented.”

Under the new guidelines recently issued by Attorney General Sessions, the Smart on Crime initiative will no longer be as smart. Regardless, according to the OIG report, “we believe that the lessons learned from the department’s implementation of the Smart on Crime initiative, and the challenges faced in assessing its impact, can be of assistance to the department when seeking to implement its new and any future charging policies and practices.” 


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