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Even Conservatives Know Jeff Sessions Won't Win the War on Drugs

Donald Trump's attorney general just told prosecutors to go hard on mandatory minimum sentences for drug offenders. It's a stupid idea that won't work.

Matt Taylor

Matt Taylor

Shawn Thew/Pool via Bloomberg/Getty Images

In the past few years, politicians from both sides of the aisle have come to realize just how destructive the war on drugs really is. The bipartisan consensus used to be that it was right and good to spend billions shoving addicts and dealers into overcrowded facilities, decimating entire communities in the process. Gradually, that's changed. In 2013, then-attorney general Eric Holder told federal prosecutors in a memo to be more lenient on drug offenders. And the country's prison population has been declining—gradually—in the past couple years, thanks in part to local efforts to be less brutal on criminals. Conservative donors like the Koch brothers found common ground with liberals. Congress even began mulling systematic reform. Light was on the horizon.

Then came Donald Trump.

Running on a fiercely "law and order" platform, Trump spent his bizarro campaign decrying how soft America is on its violent criminals—and even the exonerated Central Park Five, a group of black and Latino teens who were falsely accused of rape decades ago. After his upset victory, Trump appointed a un-reconstituted drug warrior, Alabama senator Jeff Sessions, as attorney general. On Friday, Sessions made his most dramatic move yet, reversing Holder's memo with one of his own, effectively ordering American prosecutors to stick it to drug suspects. Among other things, prosecutors are once again encouraged to specify the amount of drugs suspects are caught with, which can trigger mandatory minimum sentences that often mean decades or even life in prison.

But how big of a deal is this directive from the Justice Department? Will it flood the nation's prisons with fresh bodies, or are we seeing the last gasp of a failed policy?

Marc Levin, the policy director at Right on Crime, is a leading voice for criminal justice reform in the conservative movement. I called him up after Sessions's memo dropped for a sense of how bad an omen it is, and where reform goes from here.

This interview has been lightly edited and condensed for length and clarity.

VICE: Given the rhetoric from the president and attorney general, are you surprised, or is this roughly what you expected?
Marc Levin: I don't think it's surprising. We're uncertain of what the actual impact is gonna be. Obviously, 90 percent of criminal cases are settled at the state level and that's where most of the prison population is. We're engaged in reforms in a lot of states and continuing to see a lot of progress there.

The memo itself also does still provide for discretion in terms of just saying that as long as there's approval from the US attorney, basically the case can still be filed in a way not to trigger the harshest mandatory minimum.

The real problem is the law itself, and that's why I do hope this is an impetus for reform this year. I know Senator Sessions was in his confirmation hearing and was specifically asked and he said: My role as AG is just gonna be to enforce the law, not to take a position on proposed changes to the law from Congress. Basically, there's different [ideas] about how to implement a law—that in itself is virtually guaranteed to lead to unjust outcomes.

How involved can Congress really get in criminal justice reform in the current environment?
The Senate Judiciary Committee is in the process of taking up the confirmation of US attorneys, and usually there's not a hearing but they can actually ask—and we've encouraged them to ask in writing—for their position on these types of questions. A lot of the impact of this is going to depend on the relevant US attorney.

But of course the overarching question is, I'd like to see the attorney general do a memo on which of these should be federal cases to begin with. Our view is the federal prosecutorial resources ought to focus on major drug kingpins, international drug cartels, very serious cases, and those that require the resources that the federal government has, like cases across state lines.

Do you expect conservatives to push back on Sessions over this?
There's a lot of support for getting these reforms done in Congress. In terms of judicial philosophy, conservatives tend to talk about strictly adhering to the law. But the current law is so bad as far as the federal drug mandatory minimums and [sentencing] enhancements and such that a memo that didn't even provide for any [prosecutorial] discretion [as this one does] might arguably have been consistent with current law.

We're continuing to see conservative governors in states pushing forward. Governor Nathan Deal just signed a few more bills the other day [in Georgia]. A lot of people were worried that just the fact that there were certain comments were coming from Washington that that would derail the efforts at the state level, and we haven't seen that happening.

Do you think any conservative criminal justice reformers will be able to influence the White House?
Several weeks ago, Jared Kushner met [Senate Judiciary Committee] chairman Chunk Grassley and they—from what I understand—talked about the fact that they both agreed Congress needed to act this year on this. Obviously, Governor Chris Christie did a lot in New Jersey on drug sentencing reform and bail reform. When it comes to legislation that could come from Congress, there's going to be a lot of voices in the administration providing input to President Trump on that. So i think we're well-positioned in that regard.

But don't a lot of conservatives think violent crime is now some massive problem and needs to be dealt with harshly?
Violent crime is still basically at record lows. There were spikes in certain cities like Chicago and Baltimore, but in other cities, violent crime has continued to decline. The bottom line is that those of us who are really interested in crime and especially violent crime have to cultivate a better relationship with police and community. And that involves things like foot patrols, going to community meetings—also making sure people have confidence in the fairness of the system, that they're going to be treated equally.

My friends are freaking out about this resurgence or restart of the war on drugs. Does this memo really indicate that? How worried should we be?
When I saw the headlines about the return of the war on drugs or something, my response was, "Well, when did the war on drugs stop?" A lot of people, particularly in Southern states, are incarcerated for drug offenses. And beyond that a lot of people who committed property offenses to steal money to sustain a habit [get sentenced harshly]. And other people on parole get it revoked because they test positive. I've seen figures showing that over half of the people in prison either have an addiction or mental illness.

I saw a poll recently where even a majority of Trump voters either knew someone or had a loved one who'd been involved in the criminal justice system. And of course the Charles Koch Institute just came out with a poll showing [eight in ten] Trump voters and conservatives support criminal justice reform and not putting people in prison for a drug habit—the numbers are really off the chart. That's very significant.

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