Briefing Book

Jeff Sessions Just Doesn’t Care

The motivation behind Sessions’s minimum sentencing policy is simply punishment for punishment’s sake.

By Roy L. Austin, Jr. Myesha K. Braden

Tagged attorney generalcriminal justiceJeff SessionsPrisons

One of the bigger fallacies about our criminal justice system is the idea that mandatory minimums make us safer. Maybe you’d ask: Are there a significant number of rogue judges, such that mandatory minimums are necessary to prevent truly dangerous individuals from getting too light of a sentence? Do mandatory minimums mean that someone is less likely to recidivate? Does the threat of a mandatory minimum stop people from committing crime in the first place? Do mandatory minimums generally mean safer communities? Well, the answer to all of the above is an emphatic No. So, how can Attorney General Jeff Sessions explain his reversal of former Attorney General Eric Holder’s charging policy and Smart on Crime Initiative? He can’t. Because, as we have learned, Jeff Sessions simply doesn’t care.

In 2013, the United States Sentencing Commission found that mandatory minimum sentences are applied inconsistently, “with Black and Hispanic offenders constituting the large majority of offenders subject to mandatory minimum penalties.” Moreover, mandatory minimum sentences for drug offenses are strictly tied to drug quantities, not to how dangerous the offender is or the commission of acts of violence. As a result, rather than the “major” and “serious” offenders who Congress supposedly targeted by establishing mandatory minimum sentences for drug traffickers, the people most likely to be subject to mandatory minimums are low-level street dealers. There is nothing fair or moral about someone like Evans Ray serving a mandatory minimum of life imprisonment after three small-time non-violent drug convictions.

Between 1995 and 2010, the number of federal prisoners convicted on charges carrying mandatory minimums increased more than 178 percent, from 40,104 offenders to 111,545 offenders. This staggering increase in the federal prison population exploded the Department of Justice’s budget, without increasing public safety. In fact, the Sentencing Commission’s 2011 study of recidivism rates established that offenders who served less than the mandatory minimum sentence were no more likely to reoffend than those who served longer mandatory minimums.

Jeff Sessions’s new charging policy is a return to the antiquated policies that caused the Bureau of Prisons to account for a third of the entire Justice Department budget. The inevitable result will be a Justice Department with fewer resources to devote to its most serious public safety priorities, including crime prevention and recidivism reduction. We know for a fact that 95 percent of the 2.2 million people who we incarcerate will eventually be released and return to society. They can return either ready to contribute to their communities and families or they can return more likely than not to recidivate, with little in the way of educational or work skills and without receiving vital mental health and/or addiction programming that is needed for successful reentry. Lives will be wasted simply because short-sighted people don’t particularly care what happens to those we incarcerate.

What we also know is that AG Holder’s Smart on Crime Initiative worked, by devoting resources to the most important law enforcement priorities and ensuring just punishments for low-level convictions. As former Deputy Attorney General Sally Yates noted, we can provide people with a chance, and doing so has numerous other positive effects on the criminal justice system, including greater concentration on serious crime and more money for other Justice Department and state and local programs. Yet AG Holder’s well thought-out effort has now been replaced by a bare policy directive based on nothing but a raw desire to punish, with no evidence of any public safety benefit. Sadly, this is not surprising given the current Administration’s allergy to facts.

While there has been strong bipartisan condemnation of this new policy direction, what is particularly troubling is how readily some in law enforcement have applauded this announcement and other “law and order” moves by this Administration, despite recent complaints by these same groups about low violent crime closure rates, a lack of officers, and overall insufficient resources. Where exactly do they think this extra money is going to come from?

One might be inclined to ask, as well: Will they stop cheering once DAG Sally Yates’s warning becomes reality? “Every dollar we spend incarcerating a non-violent drug offender for longer than necessary for public safety purposes is a dollar that we can’t spend on other emerging threats and a dollar we can’t provide to our law enforcement partners around the country,” she said. Do they not see the link between insufficient resources and the unnecessary incarceration of far too many, for far too long as a major part of the problem? Or, as seems to be the case with Jeff Sessions, do they just not care?

Read more about attorney generalcriminal justiceJeff SessionsPrisons

Roy L. Austin, Jr. is Partner at Harris, Wiltshire & Grannis, LLP. He is a former Deputy Assistant to the President for Urban Affairs, Justice & Opportunity and a former Deputy Assistant Attorney General, Civil Rights Division.

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Myesha K. Braden is Acting Director for the Criminal Justice Project at the Lawyers’ Committee for Civil Rights Under Law. She is also the former Senior Policy Advisor to the Office of National Drug Control Policy and the White House Domestic Policy Council, as well as a former Trial Attorney and Legislative and Policy Counsel for the Civil Rights Division.

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