Jeff Sessions doesn’t like progress. At least, it’s obvious that he does not like progress when it comes to criminal justice reform. Instead, he prefers an approach that will take us back in time to harsh penalties for drug offenders and continue to fill our prisons with black and brown bodies. His recent policy announcement to undo the Obama administration’s guidelines on drug sentencing by restoring mandatory minimums served to roll back progress decades. And criminal justice reform advocates in the Senate are not accepting Sessions’ new policy announcement without a fight.
"The Sessions memo is like traveling back in time to the 1980s," Bruce Western, a professor of criminal justice policy at Harvard University, said. "From the chief law enforcement officer in the country, you've got an endorsement of tough-on-crime criminal justice policy." [...]
On Tuesday, in response to Sessions' policy announcement, Republican Sen. Rand Paul and Democratic Sen. Patrick Leahy proposed legislation more in line with Holder's approach: It would allow judges to tailor sentences on a case-by-case basis, regardless of whether a mandatory minimum sentence applies. Paul said these minimums have a racially disparate impact, and that Sessions' policy shift would "accentuate" that "injustice." He also said his bill would save the DOJ money—the department currently spends nearly a third of its budget on corrections. A group of House members plan to introduce similar legislation.
This is the slow march toward progress that had been years in the making before Sessions got in the way. Under Eric Holder’s watch, the Justice Department during the Obama administration had instructed federal prosecutors to avoid charging certain offenders (such as those with first-time offenses or low-level drug charges) with anything that would trigger mandatory minimums. As a result, the federal inmate population on drug charges dropped in 2014, has decreased substantially since (40 percent) and there was bipartisan support for moving away from mandatory minimums. In a country that has the highest incarceration rate in the world, lawmakers, judges and other key stakeholders were finally beginning to understand that the cost of imprisoning people for nonviolent drug charges or first-time offenses is costly and has a devastating impact on communities of color.
In April, a federal judge in Tennessee resigned in protest over a life sentence he was forced to impose on a 28-year-old drug dealer for a nonviolent offense. "If there was any way I could have not given him life in prison I would have done it," the judge told a local newspaper. Other federal judges have ruled that the sentences are unconstitutional and have refused to abide by them, but their rulings were overturned on appeal.
Taking us this many steps backward and undoing the significant progress is a terrible idea for many reasons. Evidence aside, however, Sessions is determined to move forward. So much so, in fact, that he is encouraging prosecutors to add on lengthy sentences to original charges for drug offenders.
Sessions' charging memo revived another trick used by federal prosecutors that Holder sought to curb. It rescinded an instruction that prosecutors not charge offenders with sentencing enhancements—or add-on charges that can significantly increase the length of their sentence—in order to coerce cooperation. Prosecutors often charged defendants with enhancements in order to force them to plead guilty to another charge or to coerce them to give up information or testify against someone in court.
While anyone with good sense can see that this is not progress, it is likely progress to Jeff Sessions. In Alabama as a federal prosecutor, he vigorously went after drug crimes. He has a record of opposing marijuana legalization and sentencing reform. And he is an unabashed racist who would like nothing more than to see people of color in prison rather than out on the streets. One very small piece of hopeful news in all this is that the Trump administration fired 94 federal prosecutors in March, which they have yet to replace. Since it is ultimately the prosecutors who have discretion in how to charge in these cases, perhaps Trump will get impeached before he has a chance to replace them and do any more damage.
