The Obama administration’s unprecedented commitments to investigating police departments and mitigating drug war excesses are likely to be reversed if Sen. Jeff Sessions (R-AL) becomes attorney general, the nominee indicated at his confirmation hearing Tuesday.
In two different exchanges, Sessions hinted that he disagrees with the outgoing administration’s approach to key policy tools of the broader criminal justice reform movement.
Sessions openly undercut the DOJ’s multiple ongoing investigations of police department abuses around the country by telling Sen. John Cornyn (R-TX) that it is not just unfair but outright dangerous to criticize entire police departments rather than specific officers who are proven guilty of misconduct.
“We need to be sure that when we criticize law officers it is a narrowly focused on the right basis for criticism,” Sessions said, “and to smear whole departments places those officers at greater risk.”
Trump’s nominee went on to specifically name cities that were investigated for systematic civil rights violations by police during the Obama era. He even went so far as to claim that civil rights investigations in those cities had caused crime to increase.
“I could feel in my bones how it was going to play out in the real world when we had what I thought often times was legitimate criticism of a perhaps wrong doing by a police officer, but spilling over to an entire police force,” Sessions said. “And morale has been affected, and it’s affected the crime rates in Baltimore and Chicago.”
You can read the Obama DOJ’s report on systematic abuses, harassment, and misconduct by officers of the law in Baltimore here. You can read a summary of equivalent department-wide issues in Cleveland here. A similar report on Chicago’s police department is supposed to come out later this week.
These reports, like the agency’s investigation of Ferguson and surrounding communities earlier, began after individual civilian deaths at the hands of police drew the exact kind of systemic attention that Sessions rejected Tuesday.
If the next Attorney General believes that criticizing police is only fair game when there’s a specific cop who’s committed a specific wrong on a specific day, that could be the end of these pattern-or-practice investigations into systematic violations of citizens’ rights by police. No investigations means no more lengthy, detailed reports of the exact kind of widespread wrongdoing by uniformed public safety officers that Sessions rejected out of hand on Tuesday.
Such reports are key to transparency as well as accountability. They illustrate an unseen reality for people who don’t live in the poor and minority communities which are most often subject to police harassment, violence, and financial exploitation: that Ferguson’s injustices are bigger than Michael Brown, Cleveland’s are broader than Tamir Rice, Baltimore’s are far deeper than Freddie Gray.
These investigations can also have teeth, prompting consent decrees that require systematic overhauls of police practices. If the DOJ abandons the Obama approach of investigating departments for systemic issues and reverts to the traditional, limp oversight of individual complaints about one-off abuses, the police reform movement will lose its most powerful direct tools for change — even if activist groups continue to organize effectively on the ground.
Dark murmurs for prison sentencing progress
Sessions’ comments to Cornyn were the second indication of a looming reversal of Obama-era progress for civil rights arguments inside the criminal justice world. Moments earlier, Sessions said that Attorneys General should not tell prosecutors how to handle sentencing and plea bargaining even when they believe sentencing laws are unjust.
The sentencing policy argument, which came up after Sen. Dick Durbin (D-IL) introduced a pardoned drug offender named Alton Mills, was odd given that Department of Justice guidelines for prosecutors are an essential tool of the office.
The Sessions-Durbin joust was particularly contentious, as the two men worked together to reform the racist double standards long entrenched in America’s mandatory minimum sentencing laws for powder and crack cocaine. Durbin praised him for breaking with the Republican mainstream but also noted that Sessions had only supported a smaller disparity in sentencing rather than zeroing it out.
Worse, Durbin said, Sessions opposed making their compromise reform retroactive, insisting that drug offenders victimized by the 100-to-1 disparity in punishment prior to the deal he and Durbin struck should still be subject to a policy he claimed to oppose.
“Inmates, overwhelmingly African-American, were spared thousands of prison years because of our joint effort to end this injustice,” Durbin said. “Yet, when I asked you to join me in appealing to the Sentencing Commission to follow our law, and when I asked you to join Senator Grassley and me in permitting the almost 5,000 still serving under this unfair 100–1 standard to petition individually for leniency, you refused.”
Sessions acknowledged they disagree on the retroactivity provision, but said that if confirmed it will not be his job to move on ideas like that.
“It’s not the Attorney General’s decision about when and where a mandatory minimum is imposed and whether it can be retroactively altered,” he said.
That’s not quite true. Attorneys General don’t micromanage prosecutors’ decisions in individual cases, to be sure. But they do wield system-wide influence on how those employees view their duty and interpret their mandate. For decades, official Department of Justice guidance advised prosecutors to pursue the longest possible sentence they could, effectively ensuring that prosecutors around the country would seek the most stringent punishment possible under the rules.
Federal law imposes a number of sentencing enhancements for drug crimes, above and beyond the disparate minimums for cocaine crimes. Prosecutors have discretion to invoke those enhanced sentences when they win a conviction, or to set them aside. Pursuing them means binding a judge’s hands — in some cases even requiring them to put someone in prison for life over a relatively minor offense because of their previous criminal record.
Attorney General Eric Holder changed the guidance that prosecutors get from the top. The shift bore results: prosecutors used their increased discretion to prioritize more serious drug offenders and cease chasing absolutist punishments in small-fry cases. “For years prior to this administration, federal prosecutors were not only encouraged — but required — to always seek the most severe prison sentence possible for all drug cases, no matter the relative risk they posed to public safety,” Holder said shortly before leaving office. “I have made a break from that philosophy.”
But Holder’s reforms push upstream against the longstanding tough-on-crime culture of prosecutors’ offices. Sessions’ stated belief that it isn’t the Attorney General’s job to guide the national prosecution system in that way suggests he will not hew to the reform guidelines now in force, even if he doesn’t outright reverse Holder’s legacy.