The Feds Had Been Moving Away From Mass Incarceration For Years. Then Jeff Sessions Came Along.

The attorney general’s latest memo “is like traveling back in time to the 1980s.”

Attorney General Jeff Sessions in a Department of Justice memo on May 12 reversed Obama-era guide­lines for how to deal with drug offend­ers, direct­ing fed­er­al pros­e­cu­tors to charge defen­dants with the “most seri­ous, read­i­ly prov­able” offense in near­ly all cas­es. Sessions said in a speech that day that the new guide­lines “un-hand­cuffed” pros­e­cu­tors in their law enforce­ment efforts and is “the right and moral thing to do.” His announce­ment has far-reach­ing impli­ca­tions for how fed­er­al pros­e­cu­tors across the coun­try approach drug offens­es dur­ing Trump’s administration.

Criminal jus­tice reform advo­cates—includ­ing for­mer Attorney General Eric Holder, who put the ear­li­er guide­lines in place — and some mem­bers of Congress swift­ly crit­i­cized Sessions’ pol­i­cy shift. “The Sessions memo is like trav­el­ing back in time to the 1980s,” Bruce Western, a pro­fes­sor of crim­i­nal jus­tice pol­i­cy at Harvard University, said. “From the chief law enforce­ment offi­cer in the coun­try, you’ve got an endorse­ment of tough-on-crime crim­i­nal jus­tice policy.”

Holder had hoped to reign in the use of harsh fed­er­al sen­tenc­ing laws, and back in 2013, he sent a series of reform-mind­ed mem­os to fed­er­al pros­e­cu­tors. He instruct­ed them not to charge cer­tain offend­ers, like low-lev­el or first-time drug deal­ers, with any­thing that would trig­ger a manda­to­ry min­i­mum sen­tence, which can require prison terms as long as 10 years or more for the pos­ses­sion of rel­a­tive­ly small amounts of drugs. The results were imme­di­ate. The num­ber of fed­er­al inmates sen­tenced to a manda­to­ry min­i­mum on a drug charge dropped in 2014 and has declined near­ly 40 per­cent since. The fed­er­al prison pop­u­la­tion also shrunkthat year for the first time in almost 35 years, due part­ly to Holder’s pol­i­cy changes and oth­er Obama admin­is­tra­tion efforts. Bipartisan sup­port for shift­ing away from manda­to­ry min­i­mums has grown in recent years, as research has shown that incar­cer­a­tion does lit­tle to improve pub­lic safe­ty and has had a dis­parate impact on com­mu­ni­ties of col­or — and as law­mak­ers have decid­ed that run­ning pris­ons costs too much.

Sen. Rand Paul said manda­to­ry min­i­mums have a racial­ly dis­parate impact, and that Sessions’ pol­i­cy shift would “accen­tu­ate” that “injus­tice.”

On Tuesday, in response to Sessions’ pol­i­cy announce­ment, Republican Sen. Rand Paul and Democratic Sen. Patrick Leahy pro­posed leg­is­la­tion more in line with Holder’s approach: It would allow judges to tai­lor sen­tences on a case-by-case basis, regard­less of whether a manda­to­ry min­i­mum sen­tence applies. Paul said these min­i­mums have a racial­ly dis­parate impact, and that Sessions’ pol­i­cy shift would “accen­tu­ate” that “injus­tice.” He also said his bill would save the DOJ mon­ey — the depart­ment cur­rent­ly spends near­ly a third of its bud­get on cor­rec­tions. A group of House mem­bers plan to intro­duce sim­i­lar legislation.

A key prob­lem with manda­to­ry min­i­mums is that they lim­it judges’ abil­i­ty to decide what sen­tence is appro­pri­ate, says Mark Kleiman, an expert on crime deter­rence at New York University. In April, a fed­er­al judge in Tennessee resigned in protest over a life sen­tence he was forced to impose on a 28-year-old drug deal­er for a non­vi­o­lent offense. “If there was any way I could have not giv­en him life in prison I would have done it,” the judge told a local news­pa­per. Other fed­er­al judges have ruled that the sen­tences are uncon­sti­tu­tion­al and have refused to abide by them, but their rul­ings were over­turned on appeal. Of the three fac­tors that influ­ence crime deter­rence — the cer­tain­ty of the pun­ish­ment, the speed with which it’s imposed, and the sever­i­ty of the sen­tence — sever­i­ty is least impor­tant, accord­ing to Kleiman, “part­ly because the last five years of a 20-year sen­tence start 15 years from now,” and most crim­i­nals like­ly don’t plan that far ahead.

Sessions’ charg­ing memo revived anoth­er trick used by fed­er­al pros­e­cu­tors that Holder sought to curb. It rescind­ed an instruc­tion that pros­e­cu­tors not charge offend­ers with sen­tenc­ing enhance­ments — or add-on charges that can sig­nif­i­cant­ly increase the length of their sen­tence — in order to coerce coöper­a­tion. Prosecutors often charged defen­dants with enhance­ments in order to force them to plead guilty to anoth­er charge or to coerce them to give up infor­ma­tion or tes­ti­fy against some­one in court.

“It’s a very small minor­i­ty that think the length or the kind of sen­tences that can get met­ed out under fed­er­al drug laws are appro­pri­ate. Unfortunately, Jeff Sessions is one of those people.”

There’s a lev­el of pow­er that comes with those drug laws that is very easy for them to get used exces­sive­ly or abused. Holder, through his series of mem­os, was real­ly try­ing to tame that urge,” said Mona Lynch, an expert on fed­er­al drug laws at the University of California-Irvine. “It’s a very small minor­i­ty that think the length or the kind of sen­tences that can get met­ed out under fed­er­al drug laws are appro­pri­ate. Unfortunately, Jeff Sessions is one of those people.”

As a fed­er­al pros­e­cu­tor in Alabama, Sessions aggres­sive­ly pros­e­cut­ed drug crimes, and he is adamant­ly opposed to mar­i­jua­na legal­iza­tion. He helped draft the 2010 law signed by President Barack Obama that reduced the sen­tenc­ing dis­par­i­ty between con­vic­tions for pos­ses­sion of crack and pow­der cocaine, but has since emerged as a lead­ing oppo­nent to sen­tenc­ing reform in the Senate.

In his speech on May 12, Sessions blamed drug traf­fick­ing for the recent uptick in the nation­al homi­cide rate. He’s repeat­ed­ly drawn a con­nec­tion between the homi­cide increase and drug traf­fick­ing by undoc­u­ment­ed immi­grants and car­tels. Thomas Abt, for­mer chief of staff for the DOJ’s Office of Justice Programs, told Mother Jones in an inter­view in February that there’s no evi­dence that the two are related.

In a cer­tain sense, the impact of Sessions’ pol­i­cy change could be be lim­it­ed, says Western. Less than 10 per­cent of the nation’s approx­i­mate­ly 2 mil­lion pris­on­ers — or around 190,000 peo­ple — are incar­cer­at­ed in fed­er­al prison. Of those, about half have been con­vict­ed of a drug offense. Last year, near­ly 9,000 peo­ple were sen­tenced on a fed­er­al drug charge that car­ried a manda­to­ry min­i­mum sen­tence, near­ly all of them for deal­ing. Still, the shift would like­ly have a dis­parate impact on peo­ple of col­or — who are dis­pro­por­tion­ate­ly incar­cer­at­ed and have been sen­tenced to manda­to­ry min­i­mums at much high­er rates than their coun­ter­parts in the past.

The on-the-ground impact of Sessions’ recent pol­i­cy change will par­tial­ly depend on who gets appoint­ed to fill the posts of the 94 fed­er­al pros­e­cu­tors Trump fired in March, says Lynch. For those hop­ing for crim­i­nal jus­tice reform, the prospects aren’t promis­ing — Lynch says she thinks Trump will rely large­ly on Sessions’ rec­om­men­da­tions. Still, pros­e­cu­tors who are more uncom­fort­able with manda­to­ry min­i­mums in some dis­tricts could be more selec­tive about what drug cas­es they bring. “My guess is that there’s going to be rel­a­tive­ly large geo­graph­ic dis­par­i­ties,” Lynch told me. Southern dis­tricts — where pros­e­cu­tors have been resis­tant to reform — will like­ly bring more drug cas­es than pros­e­cu­tors in the Northeast and Western districts.

“Decades of expe­ri­ence shows we can­not arrest and incar­cer­ate our way out of America’s drug prob­lem,” stat­ed the Law Enforcement Leaders to Reduce Crime and Incarceration.

Criminal jus­tice reform groups imme­di­ate­ly slammed Sessions’ pol­i­cy announce­ment last Friday. The Law Enforcement Leaders to Reduce Crime and Incarceration, a police and pros­e­cu­tors group focused on smarter polic­ing, stat­ed that “decades of expe­ri­ence show we can­not arrest and incar­cer­ate our way out of America’s drug prob­lem.” Even before Sessions’ pol­i­cy announce­ment last week, the exec­u­tive board of the American Society of Criminologists released a state­ment say­ing that the Trump admin­is­tra­tions ear­ly actions and rhetoric “demon­strate an incon­gruity between admin­is­tra­tive pol­i­cy efforts and well-estab­lished sci­ence about the caus­es and con­se­quences of crime.”

Trump has charged his aide and son-in-law Jared Kushner with lead­ing crim­i­nal jus­tice reform efforts for the admin­is­tra­tion. It’s unclear what exper­tise Kushner — who has also been tasked with help­ing to bro­ker peace between Israel and Palestine — has in the area. Last fall, a bill that would have cut the min­i­mum sen­tence for sev­er­al drug and gun offens­es enjoyed bipar­ti­san sup­port, but it was pulled after then-Sen. Sessions led a ninth-inning charge against it. In March, Kushner met with Republican Sen. Chuck Grassley and oth­er spon­sors to dis­cuss the leg­is­la­tion. Grassley has said he plans to rein­tro­duce the bill and that he thinks it will be eas­i­er to get it passed now that the elec­tion is over.

Lynch is doubt­ful. “I am skep­ti­cal about that,” she said. “The appoint­ment of Sessions does not sug­gest that the admin­is­tra­tion is inter­est­ed in tam­ing crim­i­nal law at the fed­er­al lev­el.” Story orig­i­nat­ed @ http://​www​.moth​er​jones​.com/​p​o​l​i​t​i​c​s​/​2​0​1​7​/​0​5​/​j​e​f​f​-​s​e​s​s​i​o​n​s​-​c​h​a​r​g​i​n​g​-​g​u​d​e​l​i​nes

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