Federal prosecutors should resume the old practice of pursuing the sternest possible charges and longest available sentences for all drug crime suspects, Attorney General Jeff Sessions ordered on Friday.
The new instructions reverse a memo issued in 2013 by then-Attorney General Eric Holder which sought to radically change America’s prison problem through simple changes to prosecutor behavior.
Holder had ordered U.S. attorneys to drop the across-the-board tough-guy act Sessions is reviving and instead reserve the harshest sentencing enhancements and multi-layered indictments available in the law for offenders with clear links to violent crime and organized criminal syndicates.
The aim was to end a common absurdity in American law enforcement: small-time drug busts that lead to decades-long prison terms for people who do not fit the profile of a dangerous, hardened criminal. The old practices revived in Friday’s memo from Sessions mean that someone arrested with a small quantity of marijuana could get sentenced to life in jail if they have two previous drug convictions of any kind.
Where Holder’s policy recognized that there is a difference between what the letter of the law allows a prosecutor to do and the realities of the individual actions committed by a drug convict, Sessions argues no such gap exists.
Clarence Aaron got hit with three life sentences for introducing two cocaine dealers to one another.
“By definition, the most serious offenses are those that carry the most substantial guidelines sentence, including mandatory minimum sentences,” Sessions wrote. Scrapping individualized consideration of circumstances in favor of a straitjacketed approach determined by sentencing guidelines “affirms our responsibility to enforce the law, is moral and just, and produces consistency,” he wrote.
Sessions’ moral, just policy will mean people like John Horner, Clarence Aaron, and Chris Williams once again face decades behind bars for minor incidents that outdated sentencing laws lump together with the worst cartel violence.
Horner was sentenced to 25 years for selling a few pain pills to an informant, after the informant befriended him and said he couldn’t afford medication for his own ailments. Aaron got hit with three life sentences for introducing two cocaine dealers to one another, after everyone else in the case copped pleas and left the novice middle-man holding the bag. Williams, meanwhile, was a model citizen under Montana’s medical marijuana law — yet ended up facing an 85-year mandatory minimum sentence after a federal raid on his dispensary that allowed prosecutors to radically up his charges because he had a gun on the premises of his small business.
Friday’s reversal is not a bolt from the blue. Sessions hinted he would reverse Holder’s sentencing guidance in his confirmation hearings. As a senator, he consistently undermined bipartisan Congressional efforts to pass sentencing reforms that would render such philosophical differences between administrations moot. He is an adamant drug warrior whose positions have remained static even as many of his Senate colleagues updated their views on marijuana policy, mandatory minimum drug sentencing rules, and other 20th century relics of the War on Drugs.
His new order “fully utilizes the tools Congress has given us,” Sessions wrote to prosecutors. Many in Congress had sought to take some of those tools away — and by most accounts would have done so last year were it not for the interventions of Sessions and Sen. Tom Cotton (R-AR).
Prosecutors may still decide a given case doesn’t merit throwing the book at someone, Sessions wrote — but they must get an Assistant Attorney General or their U.S. Attorney to sign off on that decision. Under the previous policy, President Barack Obama’s Department of Justice entrusted such situational decisionmaking to prosecutors directly.
The Holder/Obama policy did not prevent the feds from hammering someone they believed was committed to a life of serious crime. It simply ended the strict requirement, re-established now by Sessions, that the government’s default position in all drug cases would be to chase the harshest possible jail term.
The shift was philosophically consistent with Congress’ work to shrink — but not end — the racist sentencing disparities between cases involving crack and powder cocaine. It also reflected a broader, trans-ideological push to repair the sociological harm done by the Reagan- and Clinton-era mindset that even low-level drug offenders should be locked in cages for as long as humanly possible.
Sessions and his boss never got with the times.
Even after Congress passed the mandatory minimums reform package, Sessions made sure the new rules would not be applied retroactively — meaning everyone hurt by the old policy could not benefit from the legislative branch’s modern epiphany.
President Donald Trump, meanwhile, built a significant part of his political persona on throw-away-the-key macho posturing toward law enforcement. There is good reason to think Trump’s campaign trail bravado was sincere: He once called for the falsely accused Central Park 5 to be executed, and continued to insist they are guilty even after they were exonerated, released from prison, and compensated by New York City for their false imprisonment.
The consensus movement Sessions and Trump are trying to thwart, frequently shorthanded as “Smart on Crime,” is not going away just because the White House and DOJ have changed hands. It remains vibrant at the state and local policymaking and organizing level, as coalition advocates told ThinkProgress in April.
Since the vast majority of those incarcerated in America are in state prisons rather than federal ones, there are still plenty of meaningful opportunities for lawmakers to realize the promise of Smart on Crime ideas.
The federal government just isn’t one of them anymore.