Attorney General Jeff Sessions issued a policy earlier this month reversing policies put in place by the Obama administration that eliminated harsh punishments for low-level drug crimes. In a memo to federal prosecutors around the country, Sessions directed them to seek harsher penalties for low-level offenses. It’s a step that will bring back the type of policy that contributed to the ballooning mass-incarceration system I the United States.
“It is a core principle that prosecutors should charge and pursue the most serious, readily provable offense,” the memo says. “By definition, the most serious offenses are those that carry the most substantial guidelines sentence, including mandatory minimum sentences.”
This statement, released May 12, rolls back a crucial Obama-era policy in the Justice Department, aimed at mitigating harsh sentencing laws imposed in the past. In 2013, Obama’s attorney general Eric Holder instructed federal prosecutors not to charge nonviolent drug offenders with crimes that carry mandatory minimum sentences he called “draconian.”
Sessions’ opposite, “tough on crime” attitude, which he has espoused since the beginning of his tenure, is being widely compared to the 1970s “War on Drugs” that wreaked havoc on minority communities in previous decades. That effort really ramped up in the late 1980s with the introduction of mandatory minimums for drug crimes, and peaked with the Clinton-era 1994 crime bill that established further harsh sentences and funneled billions into the nation’s prisons.
Reactions from criminal-justice reform circles have been unanimous, from lawmakers and law enforcement leaders to advocacy groups and criminologists. Holder himself responded, calling the policy “dumb on crime,” “ideologically motivated,” and “cookie cutter.”
Sessions’s former colleagues in the Senate are pushing back on his order by introducing legislation to give federal judges more discretion to impose lower sentences.
Sen. Rand Paul (R-Ky.), who co-sponsored the legislation, said that Sessions’s new policy will “accentuate” the existing “injustice” in the criminal justice system.
“Mandatory minimum sentences disproportionately affect minorities and low-income communities, while doing little to keep us safe and turning mistakes into tragedies,” Paul said. “As this legislation demonstrates, Congress can come together in a bipartisan fashion to change these laws.”
“An outgrowth of the failed war on drugs, mandatory sentencing strips critical public-safety resources away from law-enforcement strategies that actually make our communities safer,” said Sen. Patrick J. Leahy (D-Vt.).
Leahy and Paul introduced the Justice Safety Valve Act with Sen. Jeff Merkley (D-Ore.). Rep. Thomas Massie (R-Ky.) and Rep. Robert C. “Bobby” Scott (D-Va.) are introducing a companion bill in the House. The proposed legislation would allow federal judges to tailor sentences on a case-by-case basis. It would also reduce correctional spending, which accounts for nearly one-third of the Justice Department’s budget.
“Attorney General Sessions’s directive to all federal prosecutors to charge the most serious offenses, including [those that trigger] mandatory minimums, ignores the fact that mandatory minimum sentences have been studied extensively and have been found to distort rational sentencing systems, discriminate against minorities, waste money and often require a judge to impose sentences that violate common sense,” Scott said.
During President Barack Obama’s second term, similar sentencing reform legislation was introduced by a bipartisan group of lawmakers.
The legislation, which had 37 sponsors in the Senate and 79 members of the House, would have reduced some of the long mandatory minimum sentences for gun and drug crimes. It also would have given judges more flexibility in drug sentencing and made retroactive the law that reduced the large disparity between sentencing for crack cocaine and powder cocaine.
The bill, introduced in 2015, had support from outside groups as diverse as the conservative Koch brothers, the NAACP and House Speaker Paul D. Ryan (R-Wis.). But Sessions, then the longtime Republican senator from Alabama, became a leading opponent of the bill and successfully worked with other senators to derail it.
As he has done as attorney general, Sessions said then it was the wrong time to cut prison sentences for drug traffickers and other criminals and cited the spike in crime in several cities and his belief that an era of near-historically low crime rates might be coming to an end.
In a conference call with reporters, Paul acknowledged that lawmakers will have an “uphill battle” getting support from the White House for the sentencing reform bill.