“Arrest” by Leena Saarinen

May 19, 2017; Mother Jones

Over the last few years, the U.S has been moving away from mandatory minimum sentencing, as research has demonstrated that it has a disparate impact on communities of color and does not actually improve public safety. This shift has had bipartisan support. However, on May 12th, Attorney General Jeff Sessions reversed guidelines that protect drug offenders from minimum sentencing.

In a Department of Justice memo, Sessions further directed federal prosecutors to “charge defendants with the ‘most serious, readily provable’ offense” and “rescinded an instruction that prosecutors not charge offenders with sentencing enhancements—or add-on charges that can significantly increase the length of their sentence,” setting the scene for a tough-on-crime criminal justice policy under the Trump administration.

Sessions sees the policy reversal as empowering U.S. Attorneys, who he believes were not allowed to exercise proper prosecutorial discretion due to restrictive, overly broad mandates. Sessions said, “Charging and sentencing recommendations are bedrock responsibilities of any prosecutor and I trust our prosecutors in the field to make good judgment. They deserve to be un-handcuffed and not micromanaged from Washington.”

A recent article in Mother Jones quotes former U.S. Attorney General Eric Holder, who instituted the previous guidelines and echoed other criminal justice reform advocates when he said, “The Sessions memo is like traveling back in time to the 1980s.”

Starting in 2013, Holder began to reform existing harsh federal sentencing laws by sending memos to federal prosecutors instructing them not to charge certain offenders with crimes that would trigger mandatory minimum sentences. Low-level drug offenders, such as first-time offenders and offenders with small amounts of drugs, were included, as mandatory sentences could be as long as 10 years or more. As a result, the number of federal inmates in on mandatory minimum drug sentences dropped 40 percent over the last four years.

A police and prosecutors group that promotes smart policing called Law Enforcement Leaders to Reduce Crime and Incarceration released a press release, stating, “Decades of experience show we cannot arrest and incarcerate our way out of America’s drug problem.” The American Society of Criminologists said in their own statement that the Trump administration “demonstrate[s] an incongruity between administrative policy efforts and well-established science about the cases and consequences of crime.”

As NPQ reported earlier this year, “two of Sessions’ former Senate aides, David Stewart and Ryan Robichaux, became lobbyists for GEO Group, one of the two largest private prison companies, and that the two were specifically engaged to lobby on government contracting…The private prison industry has a big investment in the future of mass incarceration.”

Sessions’ rhetoric matches his apparent strategy. He has “repeatedly drawn a connection between the homicide increase and drug trafficking by undocumented immigrants and cartels,” even though “there’s no evidence that the two are related.”

Republican Senator Rand Paul said Sessions’ policy would “accentuate” the “injustices” of disparate racial impact of minimum sentencing.

This week, Paul and Democratic Senator Patrick Leahy proposed legislation allowing judges to bypass minimum sentences and instead tailor sentences on a case-by-case basis. This would also save the DOJ money. The House is expected to pass similar legislation.

In practice, federal judges have felt limited by mandatory sentences. Some have even ruled them unconstitutional and refused to abide by them, but their rulings have been overturned on appeal.

Federal drug law expert Mona Lynch, at the University of California in Irvine, said, “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.”

While almost half of federal prisoners are in prison for drug offenses, federal prisoners constitute only 10 percent of the U.S. approximately two million prisoners, around 190,000 people. Therefore, Sessions’ policy will likely have limited impact.

The impact of this policy will depend on who replaces the 94 federal prosecutors Trump fired in March. Though, given what we’ve seen, we shouldn’t expect much deviation here. The disparities will be found at the local level, where prosecutors will likely be more selective about the drug cases they bring.—Cyndi Suarez