Attorney General Jeff Sessions Aaron Bernstein

Four criminal justice experts weigh in on what the attorney general is saying in his memo on federal drug sentencing.

Attorney General Jeff Sessions released a memo today requiring federal prosecutors to “charge and pursue the most serious, readily provable offenses” for drug violations. The idea behind it is to allow him to continue the mission he began as a U.S. Senator—undermining the Democrat-Republican detente on the failed war on drugs.

For years, members of Congress from both parties have been trying to pass the Sentencing Reform and Corrections Act, which would reduce mandatory minimum sentences for non-violent drug offenders and give judges more sentencing discretion. But Sessions’ memo has ordered U.S. attorneys to pursue charges that “carry the most substantial guidelines sentence, including mandatory minimum sentences.”

Sessions believes that mandatory minimums “reduce the ability of law [enforcement] officers to negotiate and protect the public,”as he testified at a Congressional hearing in 2015. The research on this shows the opposite. Former Attorney General Eric Holder has been studying this issue for years now, starting with his Smart on Crime Initiative that he launched when he was at the Justice Department. In response to Sessions’s memo, Holder released his statement, saying that the DOJ’s “own data revealed just last year that, since I implemented Smart on Crime policies in 2013, prosecutors have used the discretion I gave them to focus on more serious drug cases. The data showed that while they brought fewer indictments carrying a mandatory minimum sentence, the prosecutions of high-level drug defendants had risen and that cooperation and plea rates remained effectively the same.”

Sessions’s new directive effectively ignores Holder’s work and sets the stage for a whole new chapter of the drug war. Citylab spoke with four reform-minded criminal justice experts to find out what that war might look like at the local level in American cities. Here are their five big takeaways.

1) The order directs U.S attorneys to pursue all drug cases, violent or nonviolent, from the kingpins to the corner boys.

Brett Tolman, former U.S. Attorney for Utah and advocate for sentencing reform:

What [Sessions’ memo] is really saying is we’re no longer going to allow what happened under the Holder memo, which is discretion in the hands of the prosecutors and an admonition to not go after low-level [offenders]. Sessions requires—it’s a mandate—that you must prove the charge of the highest provable offense, and by highest they mean the most serious felony, and those are the ones that carry the higher sentences.

So, in practical effect you have to treat all of the cases the same, and charge the highest provable offense. They may not spell that out or say it, but that is the practical effect.

Mona Lynch, criminology professor at the University of California, Irvine*, and author of the 2016 book Hard Bargains: The Coercive Power of Drug Laws in Federal Court:

There are a lot of cases that start with local police arresting people, they get prosecuted first in state courts, and then federal U.S. Attorneys decide to adopt the cases. A lot of those cases are tiny cases. I’ve seen seen cases where something like a half a gram of crack cocaine is getting adopted up from state court to federal court. Or there may be cases where federal prosecutors or federal agents are interested in trying to get information from the person.  

2) Sessions’ memo is aimed at federal prosecutors taking on federal drug cases—but this will affect local prosecution of drug crimes as well.

Phillip Atiba Goff, co-founder and president of the Center for Policing Equity:

What we’ve found in our research over the last several decades is that people haven’t been getting locked up more [frequently] because they are getting arrested more, or because of what police are doing, or even because of certain particular laws. They’re mostly getting locked up because of decisions that district attorneys and prosecutors are making. …

So, what you see over the decades during the rise of mass incarceration is that the arrest rates are not going up hugely, but the percentage of people who’ve been arrested who end up incarcerated are going up huge. And there’s a couple of factors that are really important or that. One is the tremendous expansion of punitive bail, and two is the perverse incentive structures for county-level district attorneys.

Here’s why this matters in terms of Sessions’ order today: In an environment where you are likely to suffer brutal consequences for charging someone too lightly—and there’s really no way to suffer negative political consequences for charging someone too tough—having a federal environment that says you should be going harder rather than softer on crime might further incentivize folks to be afraid to charge too light. And that’s exactly the wrong signal to be making.                                                  

3) If local prosecutors decide they don’t want to cooperate with federal prosecutors on drug cases, it doesn’t matter:

Former U.S. Attorney Tolman:

U.S. attorneys have jurisdiction over their districts, so it really doesn’t matter what the state does or doesn’t do. They are separate sovereignties. States have had the historical role of enforcing our criminal laws, but with the proliferation of federal criminal statutes—they’ve always tried to work together but when you change the emphasis to proving the highest provable offense, you can get acquitted on a state case and the feds could bring the case under federal statutes.  

If you get a city or state that wants to take a different focus on drug prosecutions, if the feds want to bring a case they can bring a case. It’s an issue if you find jurisdictions that are very different-minded about it. In the federal system they are not well-equipped to deal with rehabilitation. Drug courts are not as common as they are in state court systems. If the state doesn’t want them to bring a case, and a DEA agent thinks that’s not the right approach, they can bring it to the U.S. Attorney’s office and they can bring a case, regardless of what happens in the state.

4) Sessions’s order that “prosecutors must disclose to the sentencing court all facts that impact the sentencing guidelines or mandatory minimum sentences” makes his directive even more problematic.

Inimai M. Chettiar, Justice Program director for the Brennan Center for Justice:

The added harm is this additional duty to disclose all facts to the sentencing judge. That exacerbates the problem. This means prosecutors can’t avoid mandatory minimums, even in cases where they think they’re not warranted, because they have to disclose certain facts to the judge that are going to automatically invoke mandatory minimums. That’s a huge loss to prosecutorial efforts to use discretion to reduce unnecessary incarceration, and that’s going to definitely mean more and longer mandatory sentences.

5) Yes, the cities and states that have decriminalized cannabis are in danger.  

Hard Bargains author Lynch:

Under Sessions all of his signaling has been, “I don’t like marijuana; we’re going to go after marijuana.” He didn’t specify that in this memo, but I think it’s definitely on the table. It will set up a very interesting fight. They certainly have the power to and I think if anyone is going to do it, under Sessions’s DOJ it would happen. We have yet to see who they will appoint as U.S. attorneys. They fired everybody, and haven’t yet appointed people, but that will be very important. In California, where we have medical marijuana and now recreational, it would take a U.S. attorney in one of the districts to decide to go after a local business person in those businesses. We’ll see if that happens or not.

Former U.S. Attorney Tolman:

Time will tell what will happen in those jurisdictions, but those states with legal marijuana laws—those are state laws not federal. So if an individual is being investigated and you have to charge the highest provable offense, then there really is no flexibility or discretion. There’s no question that it’s a heightened concern. It’s a shift back the ’90s policy on the war on drugs, that says, “Let’s try to prosecute our way out of this.”

CORRECTION: We originally misidentified Lynch’s university affiliation as University of California, Santa Cruz.

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