Sessions Revives Costly Failed Drug Policy
This past week, Attorney General Jeff Sessions issued a memo to federal prosecutors reviving the tough-on-crime rhetoric of recent decades — rhetoric which had begun to be put to rest under the Obama administration and the leadership of Former AG Eric Holder. Sessions’ memo advised:
It is a core principle that prosecutors should charge and pursue the most serious, readily provable offense. This policy affirms our responsibility to enforce the law, is moral and just, and produces consistency. [Emphasis added]
In particular, Sessions targets mandatory minimum drug offenses, taking a swing at Former AG Eric Holder’s 2013 memo advising federal prosecutors to reserve mandatory minimum penalties for “serious, high-level, or violent drug traffickers.” Holder asserted therein that mandatory minimum statutes had resulted in outcomes inconsistent with the principles of federal prosecution.
Sessions’ memo adds to a longstanding debate on the role of prosecutors in the the criminal justice system. Mandatory minimum statutes were originally designed to limit judicial discretion and standardize sentencing, a mechanism conceivably intended to reduce racial and other disparities in sentencing and incarceration. In reality, the statutes have shifted discretion (read: power) to the prosecutor role. Prosecutors decide whether to charge defendants and under which statute. Further, 97% of federal cases are closed via plea bargaining — a process controlled entirely by the prosecutor. In contrast to what we’ve learned from our favorite Law & Order shows, only 3% of cases go to trial, up from 75% in 1977. State prosecution patterns are similar.
So what is the core principle of federal prosecution? AG Sessions believes it’s to hold offenders to full account by nailing them with the most serious, provable offense. If prosecutorial plea trends are any guide, core principles increasingly include expediting adjudication and relieving court burden. This author, a restorative justice scholar, suggests that the core principle of prosecution is to facilitate just responses to harm that are responsive to the crime survivor’s need for accountability, the offender’s need for fairness and rehabilitation, and the community’s need for public safety. At the minimum (pun intended), perhaps we can agree that prosecution should serve a pro-social function in society. A huge body of science tells us that prosecuting drug offenses under mandatory minimum statutes has been a top contributor to mass incarceration and has done nothing to quell drug use. Of course, Former AG Holder went on record with that four years ago:
Long sentences for low-level, non-violent drug offenses do not promote public safety, deterrence, and rehabilitation. Moreover, rising prison costs have resulted in reduced spending on criminal justice initiatives, including spending on law enforcement agents, prosecutors, and prevention and intervention programs. These reductions in public safety spending require us to make our public safety expenditures smarter and more productive. [2013]
It’s time to move forward, not backward.
