Last month, Attorney General Jeff Sessions stripped federal prosecutors of their traditional discretion to fit the punishment to the crime, directing them instead to seek the maximum penalty possible in all criminal cases. Last weekend in The Washington Post, Sessions defended this abrupt shift as necessary to confront the specter of rising crime, claiming “violent crime surged” while “the federal government softened its approach to drug enforcement.”
Don’t believe it. Between 2009 and 2014, crime fell to its lowest level in a generation, even while prosecutors pared back their use of strict federal penalties. Sessions’s new policy will reverse that progress. While it may fill our prisons, it won’t “make America safe again.”
First, let’s set the record straight. The attorney general’s new order replaced an August 2013 memo from former Attorney General Eric Holder, which asked prosecutors to avoid triggering harsh federal “mandatory minimum” sentences in some minor drug cases. Far from the lawless free-for-all that Sessions describes in his column – “prosecutors were required to leave out objective facts to achieve sentences lighter than required by law,” he claimed – Holder’s policy was a modest attempt to pare back draconian sentencing laws. It specifically excluded repeat and violent offenders, as well as defendants linked to “large-scale drug trafficking organizations.” Under Holder, those defendants continued to face the harshest penalties available.
Nonetheless, Sessions argues this initiative led prosecutors to soften enforcement of federal drug laws, causing crime to increase. That doesn’t square with reality. As Sessions’s column acknowledges, drug prosecutions and sentence lengths were already falling by the time of Holder’s 2013 order, and there’s no evidence Holder exaggerated that trend. (The Justice Department’s prosecution of the most serious drug offenders actually increased on his watch.) Nor did Holder’s approach correspond to an increase in crime. Instead, overall crime also fell from 2009 to 2014, when the national murder rate reached its lowest point in decades. It’s true that murder rates rose slightly in 2015, but this was highly concentrated: Almost half the increase in big-city murders occurred in Baltimore, Chicago and Washington, D.C. Data from 2016 shows a similar trend, with Chicago causing 55 percent of the total increase in urban murders. These isolated upticks in no way signal a national crime wave. If federal policy was to blame, we’d expect broad, national increases – not these isolated changes.
Rethinking mandatory minimums did not jeopardize public safety, but instead produced something remarkable: For the first time in 40 years, crime and incarceration fell in tandem. By 2016, the number of federal prisoners dropped by more than 10 percent from its 2013 peak. And mandatory minimum use fell by nearly 30 percent between 2013 and 2016. That’s welcome news in a country that still disproportionately incarcerates its citizens, especially people of color.
Unfortunately, Sessions is all but certain to reverse this progress. With U.S. attorneys now required to throw the book at all defendants, whether their prosecutors like it or not, mandatory minimum usage will almost certainly tick back up, dragging the prison population up along with it. In February, Sessions expanded the use of private prisons, grimly alluding to the “future needs of the federal correctional system.” For Sessions, expanding mass incarceration seems to be a feature of the system, not a bug.
Lower-level offenders – the type of nonviolent drug users spared under Holder – are poised to bear the brunt of this expansion. Justice Department officials have hinted for months they’re planning a crackdown on marijuana, even in states where the drug is legal.
“From a legal and scientific perspective,” Deputy Attorney General Rod J. Rosenstein told a Senate committee last week, “marijuana is an unlawful drug.” And Sessions privately asked Congress to relax a restriction blocking him from using taxpayer money to prosecute legal marijuana use in states like Colorado and California.
Police chiefs agree that forcing law enforcement to spend their time on low-level drug crimes may actually be counterproductive. First, more time arresting, prosecuting and incarcerating nonviolent offenders means less time combating violent crime . From a public safety perspective, would you rather have Chicago police arresting shoplifters, or putting a stop to the city’s spiraling murder rate? Second, prison makes people who have committed a minor offense more likely to commit a violent crime upon release , while leaving underlying problems, like drug addiction, unaddressed. Prison also saddles anyone who passes through it with a lifetime of consequences, making it harder for formerly incarcerated people to find a job or even housing after release. That may make returning to crime more attractive . All of this suggests that we should use prison sparingly – not as the one-size-fits-all solution favored by Sessions.
For anyone concerned about the fairness of our justice system, this is a true crisis. But the attorney general can only use (or abuse) the power Congress gives him. And there are a few ways lawmakers can rein Sessions in.
One option is to revive and pass sentencing reform. With Sessions out of Congress, the bill might have an easier route. Or lawmakers could give judges broader discretion to impose lighter sentences on a case-by-case basis. That’s the goal of the Justice Safety Valve Act, recently introduced by Sens. Patrick Leahy, D-Vermont, and Rand Paul, R-Kentucky.
To be sure, in some cases, such as particularly serious and violent crime, incarceration and longer sentences may be warranted. And some cities, like Chicago, are seeing a troubling increase in violence.
But Sessions’s directive goes far beyond reason and risks reigniting the same, misguided “war on drugs” that brought the nation’s criminal justice system to this crisis point, without doing anything to enhance public safety. Sessions’s arguments to the contrary should be dismissed for what they are: more of the Trump administration’s standard mix of half-truths and innuendo.
Chettiar is director of the Justice Program and Grawert is the John L. Neu justice counsel at the Brennan Center for Justice at the New York University School of Law.