This has been a tough week for the justice system in the United States. Legal and criminal justice advocates may be reeling from a one-two punch that, when examined, closely places the evenhandedness of the Department of Justice in serious question.
NPQ is covering these two stories because the justice system—its independence and integrity—is core to our democracy, and events of the last week have been alarming on two major fronts.
Reverting to Overincarceration: Sessions’ Connections to Private Prisons
Remember, in the waning days of Obama’s presidency, when Deputy Attorney General Sally Yates declared that the federal government was phasing out its contracts with private prisons? The role of mandatory sentencing for drug crimes role in expanding sentences for even minor nonviolent offenses by years had been acknowledged, and the prison population was actually beginning to decline. Those were the good old days, when for about a minute, overincarceration was seen as a problem rather than a market by people on both sides of the political aisle. Criminal justice reformers crowed, and the stock value of the two largest private prisons in the country plummeted.
At the time, I suggested no chickens be counted. Private prisons are a $4.8 billion dollar industry, and their success depends upon crime—and the public’s fear of crime—being high. Consider, if you will, President Trump’s dire and untrue representations about a spike in violent crime and the dangers that come from undocumented immigrants. Consider, too, Attorney General Jeff Sessions’ ties through former aides to the private prison industry.
In February, our new attorney general rescinded that order regarding the use of private prisons. Last week, he followed that up with a memo to federal prosecutors directing them to charge offenders with the “most serious, readily provable offense.” They should deviate only in special circumstances and with the okay from a U.S. attorney general or assistant attorney general.
“This policy affirms our responsibility to enforce the law, is moral and just, and produces consistency,” Sessions wrote. “Any inconsistent previous policy of the Department of Justice relating to these matters is rescinded, effective today.” Thus, the years-long work of advocates on reversing the terrible toll of mandatory sentences was set back, at least at the federal level.
As we mentioned, Sessions has connections to the private prison industry, and the stock prices of those large private prison companies have recovered since Trump’s election. On the day after the election, we wrote, “[s]hares of the GEO Group jumped by 30 percent, and the Corrections Corporation of America saw its stock increase by 40 percent. GEO Group’s stock is trading near its 52-week high, while CCA’s rebound still leaves it one-third below its August share price.” Reports Vocativ, “On Nov. 7, 2016, a day before Trump won the presidential election, GEO Group’s stock was worth $10.61 a share and CoreCivic’s was at $14.19. As of Thursday, they were worth $32.10 and $32.81, respectively.”
At the time, we expected that those facilities might be filled, at least at first, with immigrants lacking legal status under Trump’s new policies in that area. But, in part due to the public response, the growth has been less than perhaps expected.
The Russia Investigation: An Obstruction of Justice?
Meanwhile, Sessions has been busy elsewhere, sending a memo to the president to back one sent Sessions by Deputy Attorney General Rod Rosenstein, urging Trump to fire James Comey as Director of the FBI. The timing of this was clearly suspect, coming a week after Comey had testified that the investigation at the FBI about links between the Trump campaign and Russia was not only quite active but was focused in part on Trump advisors.
In his memo, Sessions wrote, “Based on my evaluation, and for the reasons expressed by the Deputy Attorney General in the attached memorandum, I have concluded that a fresh start is needed at the leadership of the FBI.”
But why were we hearing from Sessions on this issue?
“During the course of the last several weeks, I have met with the relevant senior career Department officials to discuss whether I should recuse myself from any matters arising from the campaigns for president of the United States,” he said in his written recusal released on March 2nd. “Having concluded those meetings today, I have decided to recuse myself from any existing or future investigations of any matters related in any way to the campaigns for President of the United States.”
Sessions thus recused himself after being faulted for failing to disclose contacts with the Russian ambassador to the U.S. during the presidential campaign when he was a high profile surrogate for Trump in addition to his role as a U.S. Senator. In the eyes of some, Attorney General Sessions’ open participation in former FBI director James Comey’s termination last week flouts that commitment to recuse himself, placing his tenure at risk.
Trump’s admission to NBC News anchor Lester Holt during an interview that he was thinking of the Russia investigation when he fired Comey—a statement that contradicted the denials of the rest of the crew—did no one but the general public any favors. Readers will recall that state