Virtually every person who faces federal drug charges can now expect to receive a stiff mandatory-minimum sentence under a new policy announced late Thursday by Attorney General Jeff Sessions.
Shortly after speaking about the opioid crisis in Charleston, West Virginia, Sessions sent a memorandum to federal prosecutors across the country, ordering them to “charge and pursue the most serious, readily provable offense” in all cases. The memo included specific instructions for prosecutors to file charges that carry mandatory minimum sentences whenever possible.
The move counteracts the “smart on crime” reforms enacted under President Obama and Attorney General Eric Holder, including a 2013 policy change that allowed prosecutors to use their discretion and avoid harsh mandatory minimums in drug cases that involve lower-level or nonviolent offenders.
The leeway helped reduce the federal prison population by nearly 10 percent. Last year, about 44 percent of federal drug offenders received a mandatory-minimum sentence, the lowest level since 1993, according to the U.S. Sentencing Commission.
In his 437-word memo, Sessions still left room for prosecutors to use “good judgment” in cases where “a strict application of the above charging policy is not warranted,” but he cautioned that “prosecutors should carefully consider whether an exception may be justified.”
Advocates for criminal justice reform have been bracing for such an announcement from Sessions, and they reacted to the news Thursday with a mix of disappointment and indignation. The ACLU said the attorney general “is pushing federal prosecutors to reverse progress and repeat a failed experiment.”
Ames Grawert, counsel at NYU law school’s Brennan Center for Justice, said the new policy means “you’re going to be triggering a mandatory minimum in almost every drug case.”
“You can make a really safe prediction that you’ll see more people in prison for longer on relatively minor drug charges,” Grawert said. “You’ll see the prison population start to go back up again.”
The head of the National Association of Assistant United States Attorneys praised the new policy and said it will “restore the tools” that Congress created for federal prosecutors to use against drug traffickers and gangsters.
Mandatory-minimum sentencing laws, which require judges to impose lengthy sentences on drug offenders no matter what the circumstances, were enacted in the late 1980s during the peak of the crack epidemic as a way for politicians to appear tough on crime. The laws caused the federal prison population to explode, and even some of the authors who helped draft the original legislation say it was poorly thought-out and ineffective in hindsight.
Sessions, a former federal prosecutor, is one of a handful of hard-line Republicans who still supports the use of mandatory minimums and opposes criminal justice reform. The view is increasingly at odds with the views of voters across the political spectrum. A poll last month by the conservative Charles Koch Institute found that 81 percent of Trump voters think criminal justice reform is “very important,” and 63 percent said judges should have the freedom to assign forms of punishments other than prison, which is the opposite of what mandatory-minimum sentences require.
In his speech Thursday in West Virginia, Sessions linked the opioid crisis with an uptick in violent crime in some major American cities, even though crime overall is the lowest it has been in decades.
“We know drugs and crime go hand in hand,” Sessions said. “Drug trafficking is an inherently violent business. If you want to collect a drug debt, you can’t, and don’t, file a lawsuit in court. You collect it by the barrel of a gun.”
Sessions expressed support in general terms for drug treatment and prevention programs, but he emphasized that “criminal enforcement is crucial to stopping the violent transnational cartels that smuggle drugs across our borders, and the thugs and gangs who bring this poison into our communities.”
If that language sounds familiar, it’s because Ronald Reagan said something eerily similar in 1988, when many of the current mandatory minimums were put on the books. “We cannot tolerate criminals who violate our borders, terrorize our communities, or poison our citizens,” Reagan said, laying the groundwork for his new strategy “to reduce the supply and demand for illegal drugs.”
Nearly 30 years later, there’s still ample supply and booming demand for drugs. And now, after a brief experiment with an alternative approach, Sessions is ensuring that the strategy for fighting the war on drugs will remain unchanged.