//  6/19/17  //  Commentary

Last month U.S. Attorney General Jeff Sessions directed federal prosecutors to be more aggressive when charging and making sentencing recommendations in drug cases.  He has now defended his new policies in an op-ed remarkable either for its mendacity or for its carelessness.   It’s worth walking through his argument, claim by claim, not just to see how weak his case is, but also to see how little regard Sessions seems to have for the truth, at least in this context.

1.  Sessions starts out by saying that in 2013, with only “limited exceptions,” the “Justice Department ordered federal prosecutors not to include in charging documents the amount of drugs being dealt when the actual amount was large enough to trigger a mandatory minimum sentence.”  This is flatly untrue.  The memo that Attorney General Eric Holder issued in August 2013 told federal prosecutors—in line with longstanding DOJ policy—that they “should ordinarily charge the most serious offense that is consistent with the nature of the defendant’s conduct, and that is likely to result in a sustainable conviction,” but that the charges should also “reflect an individualized assessment and fairly represent the defendant’s criminal conduct.”  The Holder memo did direct prosecutors to decline to charge the quantity necessary to trigger a mandatory minimum drug sentence, but only for defendants that (a) didn’t engage in violence, threaten violence, possess a weapon, sell drugs to minors, or cause death or serious bodily injury; (b) didn’t play a leading, organizing, or supervising role in a criminal organization; (c) lacked any significant ties to gangs or cartels; and (d) lacked any significant criminal history.

2.  Sessions says that the Holder memo “required” prosecutors “to leave out objective facts in order to achieve sentences lighter than required by law.”  False.  The Holder memo said that “[p]rosecutors must be candid with the court, probation, and the public as to the full extent of the defendant’s culpability, including the quantity of drugs involved in the offense and the quantity attributable to the defendant’s role in the offense, even if the charging document lacks such specificity.”

3.  After mischaracterizing the policy announced in 2013, Sessions says that it caused federal drug prosecutions to drop by almost a quarter.  He says that the “result” of the Holder memo “was that federal drug prosecutions went down dramatically—from 2011 to 2016, federal prosecutions fell by 23 percent.”  He links to a Pew Research Center report, which in turn relies on figures compiled by the Administrative Office of the U.S. Court.  Those figures in fact show a decline of only 21% from 2011 to 2016 in the number of federal drug defendants (from 31,134 in 2011 to 24,621 in 2016), but that’s not the big problem here.  The big problem is using 2011 as the comparison year. 

Why would Sessions pick 2011 as the comparison year for determining the effect of a policy announced in 2013?  Because 2011 was an unusual year; there were more federal drug defendants charged in 2011 than in any other year since 2005.  Sessions is cherry picking.  If you’re trying to get an honest sense of what impact a change announced in 2013 might have had, you would take 2012 as your comparison year, not 2011.  And the decline in the number of federal drug defendants from 2012 to 2016 is 16% (from 29,157 in 2012 to 24,621 in 2016), not 23% or 21%.

4.  It’s odd, in any event, to suggest that the Holder memo resulted in fewer federal drug prosecutions.  Does Sessions think that federal prosecutors said, in effect, “well if I can’t get a mandatory minimum sentence against this first-time, non-violent, low-level drug trafficker, I’m not going to bother charging the case at all”?  Doesn’t seem likely.  But Sessions also claims that “the average sentence length for a convicted federal drug offender decreased 18 percent from 2009 to 2016.” 

From any rational standpoint, that would be reason for celebration:  our drug sentences are absurdly draconian, and their lopsided impact on minority defendants is a national scandal.  But, again, the figures don’t back Sessions up.  The figures he links to, from the United States Sentencing Commission, show a drop of 15%, not 18%, in the average sentence for a convicted federal drug trafficker:  from 77.9 months in 2009 to 66 months in 2016.  More importantly, Sessions is again fudging his math.  He is again using the wrong comparison year to measure the impact of a policy announced in 2013; this time he uses in 2009.  If he used the correct year—2012—instead, he would find a drop of only 3% (from an average of 68 months in 2012 to 66 months in 2016).

5.  The next step in Sessions’s argument is to suggest that, as a result of the charging practices announced in the Holder memo, the long-term decline in violent crime in the United States has now “reversed.”  Violent crime remains at historic lows, and it is too early to know whether the uptick in 2015, even if it turns out to have continued in 2016, represents a “reversal” of the long-term trend.  The violent crime rate in 2015 returned roughly to the level of 2013 and was lower than in any previous year since 1970.  More to the point, there is zero evidence that the recent increase in violent crimes has anything to do with the 2013 change in federal drug prosecution policies.  And it is very hard to see how the Holder memo could possibly have had much of an impact on violent crime rates in the United States since 2013, given that (a) it seems to have caused, at most, a 3% drop in average federal drug trafficking sentences, and (b) the vast bulk of criminal prosecutions happen in state court, anyway.

6.  One last thing.  Sessions says that he issued his new charging guidelines last month “after weeks of study and discussion with a host of criminal-justice participants.”  I don’t know which “participants” he was talking with, but he plainly was not listening to anyone with actual knowledge of how federal drug sentences have been operating and the ruinous consequences of mandatory minimum sentences.  And the “weeks of study” that Sessions claims to have conducted don’t seem to have included any time looking honestly at data.

Roberts’ Rules: How the Chief Justice Could Rein in Police Abuse of Power 

8/19/20  //  In-Depth Analysis

A theme of Chief Justice John Roberts’ opinions this past term is that courts should not employ open-ended balancing tests to protect fundamental constitutional rights. Yet there is one area of the Supreme Court’s constitutional jurisprudence that is rife with such amorphous balancing tests: policing. It is long past time for the Court to revisit this area of law.

Unbinding Leniency: Evaluating the Obama Clemency Initiative and Its Lessons

6/22/20  //  In-Depth Analysis

A recent article evaluates President Obama's clemency initiative and its lessons for criminal justice reform.

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Versus Trump: Easha's Back, To Talk Qualified Immunity and Police Reform

6/21/20  //  Commentary

On this week’s Versus Trump, Easha Anand makes her triumphant return to talk qualified immunity and police reform. The trio talk about the proposal to reform qualified immunity and debate whether that will do much. They then break down other new legal innovations in the various proposals and ask: is it enough to create new grounds for people to sue? Or are other reforms more important? Listen now!

Easha Anand

San Francisco

Charlie Gerstein

Gerstein Harrow LLP