Despite Attorney General Jeff Sessions’ pledges to crackdown on drug crime, federal drug prosecutions under his watch are thus far at historic lows, new data released last week shows.
At a time when President Trump has publically called Sessions “very weak,” legal experts and former prosecutors say the Senate’s inaction confirming new U.S. attorneys and a federal hiring freeze instituted by the Trump administration have left the attorney general without the tools he needs to reverse a five-year decline in drug prosecutions. Without his own people implementing tough-on-crime policies on the ground, local investigators may still be operating under Obama-era reforms and bringing less cases to the feds for prosecution.
“For four years people got used to doing things a different way,” said Mark Osler, a former assistant U.S. attorney in Detroit. “Sessions doesn’t have the people on the ground to do the shoving.”
As the country’s highest ranking law enforcement officer, Sessions has vowed to punish drug offenders with the harshest possible sentences, a drastic shift from drug policy under President Obama. In a memo to U.S. Attorneys in May, he reversed an an Obama-era reform, urging prosecutors to enhance sentences for those who violate federal drug laws.
But so far Sessions’ changes have not registered in drug prosecution data. The feds prosecuted nine percent fewer drug crimes from February to June of this year compared to the same period last year and more than 20 percent fewer than that period five years ago, according to data from the Transactional Records Access Clearinghouse at Syracuse University.
When asked about the data, the Department of Justice responded:
The Department of Justice is unable to vouch for TRAC methodology, and many variables play into those statistics. It is not a surprise, however, to see drug prosecutions drop since 2012 following the previous administration’s directive to federal prosecutors to understate the quantity of drugs distributed by dealers. Attorney General Sessions recently reversed that policy, and continues working on new initiatives that will allow the Department of Justice to use every tool available to aggressively target drug traffickers and others responsible for the unacceptable drug crisis.
“We know drug trafficking is an inherently violent business,” Sessions said in June. “We have to create a cultural climate that is hostile to drug abuse.”
It looks like it’s going to take a lot more than strong statements from Justice Department headquarters to change federal drug policy across the country.
“People working within the beltway often assume that ‘main justice’ is this perfect hierarchy, that the Attorney General announces some new policy and everyone follows it,” Osler said. “That’s not how it works. The fiefdoms of U.S. attorneys are really important. Who’s in charge locally matters a lot.”
And right now, Sessions doesn’t have any of his own U.S. Attorneys serving in districts across the country.
“Sessions doesn’t have the people on the ground to do the shoving.”
President Trump abruptly asked for resignations from all Obama-era U.S. attorneys in March, leaving 90 of the 93 U.S. attorney spots in district offices across the country empty. (Three were allowed to stay on.) Trump began nominating people to fill the vacant seats in June, but so far none of his 24 nominees have been confirmed by the Senate, which has had its hands full with the Russia investigation and healthcare.
The district offices offices themselves — made up of assistant U.S. attorneys and other lawyers — are short staffed as well. In January, Trump put a hiring freeze in place, which has prevented U.S. attorneys from bringing on new people.
Former U.S. Attorney Walt Green of Louisiana, who left office as part of Trump’s purge, said when district offices wants to replace someone, they have to give an explanation to DOJ, which then needs to sign off on the candidate. But with the hiring freeze, the department is slow to approve anyone, which makes filling the lower level federal prosecutor positions difficult.
At a speech about crime associated with sanctuary cities in July, Sessions said he would hire 300 more assistant U.S. attorneys and place them “where they are most needed to fight the scourge of crime.” But that hasn’t happened yet.
To get his drug crackdown off the ground, Sessions needs his own people in the district offices putting his tough-on-crime plans into action. That includes clarifying to local law enforcement that if drug cases are brought to the feds, they will “charge and pursue the most serious, readily provable offense,” as Sessions has instructed them to do.
But local jurisdictions might be turning to the feds less frequently because of Obama-era reforms that discouraged stiff sentences for drug offenders. Local investigators are normally inclined to recommend cases to U.S. attorneys because federal drug sentences are traditionally much tougher than local ones. But under the Obama-era reform — charging drug defendants with lower drug amounts and only using sentence enhancements in the most egregious cases — local investigators had less incentive to bring their cases to the feds.
“What cases they take, the interactions they have with local law enforcement is really going to depend on them having someone in there committed to the Sessions policy,” Osler said. “Them not having their U.S. Attorneys in place yet really matters. That’s where the change is going to come from.”
The shift away from federal drug prosecutions over the past several years was part of a push under President Obama to punish more drug kingpins, and fewer low-level users. Bipartisan support even existed for for a bill in the Senate last year that would have eased sentences for federal nonviolent drug offenders. The bill cleared the Judiciary Committee overwhelmingly, but later stalled out. Tough-on-crime conservatives, including Sessions, were opposed to the change.
Judiciary Committee Chairman Chuck Grassley has promised to bring the reform bill back this year, but until Congress passes something, Attorney General Sessions’ guidance is the law of the land.