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A memorandum released by Attorney General Jeff Sessions to Justice Department prosecutors May 10 signals a shift in drug prosecutions that will swing back toward tough-on-crime policies from the 1990s to early 2000s, according to legal analysts.
But that move directly contradicts the federal- and state-level efforts of Republicans over the past decade to overhaul the criminal justice system and could bring the party into conflict down the line, said Mona Lynch, a criminology and law professor at University of California Irvine who recently published a book on federal sentencing and drug crimes.
While Congress could stabilize the policy shifts from the past three presidential administrations, any such legislation could bring a clash between high-ranking Republicans in the executive and legislative branches with President Donald Trump at the center, said former U.S. Attorney for Utah Brett Tolman, who was appointed by George W. Bush.
The memo is “a direct swipe at both the congressional effort to do sentencing reform and the U.S. attorneys’ offices efforts to reduce mandatory minimums,” Lynch said.
Meanwhile, the Justice Department said in a statement that its only goal is to uniformly enforce existing laws, according to an email from agency spokesman Ian D. Prior.
The memo, released to U.S. attorneys nationwide, advises prosecutors to “charge and pursue the most serious, readily provable offense” and “disclose to the sentencing court all facts that impact the sentencing guidelines or mandatory minimum sentences.” While it does say that prosecutors could deviate from the directions, those prosecutors must obtain written permission from their U.S. attorney to do so.
Sessions’s language mirrors that of a 2003 memorandum from then Attorney General John Ashcroft, which many in the criminal justice system, including Tolman, cite as a major contributor of the mass incarceration epidemic in the federal prison system that followed.
Tolman called Session’s memo a “rollback” of smart-on-crime initiatives detailed in a 2010 memorandum from Attorney General Eric Holder, who was appointed by President Barack Obama. That memo emphasized individual judgment in charging and sentencing that Tolman, among others, credits as the reason behind a reduction in federal mass incarceration and drug prosecutions.
The federal prison population saw a sharp decline during the Obama years, according to a January Pew Research Center report.
“The number of sentenced prisoners in federal custody fell 5 percent (or 7,981 inmates) between the end of 2009, Obama’s first year in office, and 2015, the most recent year for which (Bureau of Justice Statistics) has final, end-of-year statistics,” the report states. “Preliminary figures for 2016 show the decline continued during Obama’s last full year in office and that the overall reduction during his tenure will likely exceed 5 percent.”
Additionally, Lynch said the move contradicts a more recent Holder memorandum issued in 2014 that advised against making sentencing enhancement threats during plea negotiations. The enhancements, which can double or triple prison time for certain drug offenses, fell out of popular use under Holder. Now, their use likely will be seen as a necessity for federal prosecutors under the new Sessions policy, she said.
The Justice Department stated the new stance resulted from meetings with its attorneys across the country and its commitment to existing federal law.
“The Department of Justice has an obligation under the United States Constitution to faithfully execute the laws passed by Congress, an ethical duty of candor to the courts, and a responsibility to the American people to ensure that justice is done,” Prior wrote in an email.
“The directives in the memo guarantee that prosecutors treat all defendants fairly, equitably, and uniformly and that the charges that a defendant faces should not depend on the particular prosecutor who charges the case nor the district in which charges are brought.
“Further, this policy was formulated after extensive consultation with Assistant United States Attorneys at both the trial and appellate level, as well as former United States Attorneys and Main Justice Attorneys,” he wrote.
States began introducing legislation to change both incarceration and crime rates a decade ago, said Jenna Moll, deputy director of U.S. Justice Action Network. USJAN is a coalition that brings progressive and conservative groups together to “pass sweeping criminal justice reforms,” according to its website.
The two states that led the charge were Texas and Georgia, Moll said. Both used state-gathered data to invest in communities or alternatives to incarceration, such as diversion programs like drug or mental health treatment, she said.
Moll said USJAN works in 14 states trying to rework their criminal justice systems to ensure they’re investing in initiatives that will reduce prison populations and increase public safety with state legislation. Another three passed criminal justice bills in 2016 aiming to reduce prison populations and increase public safety.
Just this year, governors in Georgia and Oklahoma—Nathan Deal (R) and Mary Fallin (R), respectively—signed overhaul legislation packages into law.
Georgia added three new laws building upon legislation from previous sessions that will prioritize alternatives to probation and parole, encourage more parental involvement instead of criminal sanctions to deter juvenile offenders, and improve court communications to deflect low-level traffic offenders from winding up in jail.
The Oklahoma package shifts state sentencing laws away from mandatory minimums to a case-by-case system allowing for increased judicial discretion.
Meanwhile, two bills foundered in Congress in 2016—one never making it to the House floor—and now, a “walk-back” on the Justice Department’s attempt to bring informal change to reduce the federal prison population absent legislative action, Moll said.
“State after state, we see legislators looking at these reforms and saying, ‘What else can I do?’” Moll said. “Unfortunately, the federal government is alone in walking these things back.”
Many deep-red states will likely continue the trend toward justice policies that force them to reduce prison populations and re-offense rates in an effort to balance state budgets, Lynch said. Moll agreed, pointing to the widespread success that states have seen since implementing money-savvy policies that often provide humanitarian impacts on communities.
Lynch said the discrepancy between state and federal efforts and the Justice Department could mean a fractured GOP, especially with Trump’s unpredictability on the issue.
Tolman said he split his term between administrations, with three years under Bush and a year under Obama, and saw significant differences in how the Ashcroft and Holder memos affected how he ran his office.
Tolman said he “wasn’t a fan” of either memorandum and sees an opportunity for Congress to stabilize the pendulum.
Last session, Congress attempted to put forth two bipartisan pieces of legislation reducing mandatory minimum sentences and allowing for more judicial discretion in the sentencing phase.
Tolman said he believes the widespread support surrounding that legislation opens up an opportunity for Congress to bring stability to the Justice Department.
“As a prosecutor, you don’t want to feel like you’ll have a different policy based on an election,” he said.
Lynch isn’t so sure. She said a clear agenda has been set in Congress without any indication that criminal justice might take priority.
Even if Congress did take up overhauling the criminal justice system, Lynch said it’s completely unpredictable whether Trump would sign off on even bipartisan initiatives.
Trump could use his pen as leverage for accomplishing a different policy goal, but could also just veto any measure based on the advice of Sessions. After all, Sessions has made his background as a former state and U.S. prosecutor with tough-on-crime policies well-known, Lynch said.
“Attorney General Sessions is an old-school drug warrior and a law-and-order-kind of person who has been at the forefront of trying to obstruct bipartisan sentencing reform that was getting quite a bit of traction from 2014-2017,” she said.
Moll expressed a more positive outlook on both Sessions and Trump, who doubled down on his tough-on-crime rhetoric this week in a May 15 speech during a law enforcement memorial.
“Ultimately, no matter what you think about the memo, Attorney General Sessions is working under the laws that Congress has set for us,” she said.
Plus, she said, Sessions agreed in his confirmation hearing that he would enforce any laws that Congress enacted on the criminal justice front.
As for the president, Moll is also confident.
“He’s a businessman at heart and if he was to look at the business of corrections, he would be aghast,” she said.
One of every $4 in the Justice Department’s budget goes to the Bureau of Prisons, she said. And with U.S. Sentencing Commission data showing half of all offenders being rearrested under policies that offer no social support for inmates—such as mental health or drug treatment, reentry support, or job training—it would be an easy decision for Trump to make.
“Any business that failed half of the time would be enough proof” that the administration should do something about, Moll said.
Despite the disagreement, Lynch said one thing is certain.
“It’s scary, but it will be interesting to see what happens,” she said.
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