The year began with U.S. Attorney General Jeff Sessions continuing the Department of Justice’s 2017 trend of “tough on crime” policy—and ended with Sessions’s resignation.
In January, Sessions rescinded the “Cole Memo”—a United States Department of Justice memorandum issued August 29, 2013, by United States Deputy Attorney General James M. Cole—effectively re-opening the door to federal prosecution in states that have legalized marijuana.Memorandum from U.S. Attorney General Jeff Sessions to All U.S. Attorneys, “Marijuana Enforcement” (Washington, DC: Office of the Attorney General, January 4, 2018). For the Cole Memo, see Memorandum from James M. Cole, Deputy Attorney General, to All United States Attorneys, “Guidance Regarding Marijuana Enforcement” (Washington, DC: Office of the Attorney General, August 29, 2013). In March, he instructed federal prosecutors to seek the death penalty for certain violent drug-related offenses—and some nonviolent ones, such as some racketeering activities and “dealing in extremely large quantities of drugs.”Memorandum from U.S. Attorney General Jeff Sessions to All U.S. Attorneys, “Guidance Regarding Use of Capital Punishment in Drug-Related Prosecutions” (Washington, DC: Office of the Attorney General, January 4, 2018).
After Sessions resigned as President Trump’s request, the President then appointed Matthew Whitaker, Sessions’s chief of staff, as Acting Attorney General.For Sessions’s resignation, see Peter Baker, Katie Benner, and Michael D. Shear, “Jeff Sessions is Forced Out as Attorney General as Trump Installs Loyalist,” New York Times, November 7, 2018. For Whitaker’s appointment, see Carol D. Leonnig, Tom Hamburger, Sari Horwitz, and Robert Costa, “In Matthew Whitaker, Trump Has a Loyalist at the Helm of the Justice Department,” Washington Post, November 7, 2018. As the year drew to a close, William Barr emerged as Trump’s nominee for the permanent position.Senate Committee on the Judiciary, “Executive Nominations,” December 19, 2018. Barr, who served as Attorney General under George H.W. Bush from 1991–1993, is a strong proponent of sweeping presidential powers and has both praised Trump’s decision to fire FBI Director James Comey and criticized Robert Mueller’s special counsel team.Charlie Savage and Maggie Haberman, “Trump Weighs Bringing Back William Barr as Attorney General,” New York Times, December 6, 2018; William Barr, “Former Attorney General: Trump Made the Right Call on Comey,” Washington Post, May 12, 2017; Matt Zapotosky, “As Mueller Builds His Russia Special-Counsel Team, Every Hire Is Under Scrutiny,” Washington Post, July 5, 2017. Like Sessions, he has long supported “tough on crime” policies—and has even argued that the United States does not incarcerate enough people.Savage and Haberman, “Bringing Back William Barr as Attorney General,” 2018; Barr, “Trump Made the Right Call on Comey,” 2017; William Barr, The Case for More Incarceration (working paper) (Washington, DC: U.S. Department of Justice, 1992); and William Barr, Combating Violent Crime: 24 Recommendations to strengthen Criminal Justice (Washington, DC: U.S. Department of Justice, 1992). In November, Barr, along with two other former Attorneys General, penned an op-ed for the Washington Post praising Sessions for record-breaking numbers of criminal prosecutions and for increasing prosecution of immigration cases, as well as for rescinding “smart on crime” era guidance.William P. Barr, Edwin Meese III, and Michael B. Mukasey, “Jeff Sessions Can Look Back on a Job Well Done,” Washington Post, November 9, 2018.
Federal prosecutions, however, constitute a small fraction of all prosecution in the United States. In 2016 approximately 77,000 people were prosecuted for federal offenses.John Gramlich, “Federal Criminal Prosecutions Fall to Lowest Level in Nearly Two Decades,” Pew Research Center, March 17, 2017. In the same year, criminal charges—not including traffic cases or cases against juveniles—were filed against 17.8 million people in state court.Court Statistics Project, “Number of Incoming Cases, by Case Category and Tier, 2016 (in Millions),” National Center for State Courts.