//  6/8/17  //  Commentary

Yesterday, a bipartisan group of senators — Republicans Mike Lee of Utah and Rand Paul of Kentucky, and Democrats Dick Durbin of Illinois and Cory Booker of New Jersey— sent a letter to Attorney General Jeff Sessions questioning his May 10, 2017 directive that federal prosecutors must pursue mandatory minimum sentences in even low-level, non-violent drug cases.

That directive has come in for widespread criticism. As former federal judge Nancy Gertner and I explained in The Washington Post last month, Sessions’s move threatens to reverse recent progress in cutting the federal prison population and concentrating Justice Department resources on the most serious offenses. The senators’ letter adds to the chorus of critique in at least three effective ways.

First, the letter demonstrates that Sessions is out of step with “the growing bipartisan view” that drug charges triggering mandatory minimums result in unjust prison terms.  The Sentencing Reform and Corrections Act of 2015, which would have reduced certain minimum penalties and given judges more authority not to impose them, had 37 sponsors in the Senate and 80 in the House.  Few other bills have brought together the likes of John Cornyn (R-Texas), Chuck Schumer (D-New York), Bob Goodlatte (R-Virginia), and Sheila Jackson Lee (D-Texas). As a senator from Alabama, Sessions opposed the bill and helped derail it last year. Today’s letter highlights that Sessions’s view on charging and sentencing policy puts him on the fringe of his own party.

Second, the letter explodes the rationales that Sessions provided in his May memo for changing DOJ charging policy: fairness, consistency, and public safety.  The senators explain that pursuing mandatory minimums against low-level drug offenders, who have no significant criminal history and no cartel or gang ties, serves neither fairness nor consistency.  Instead, Sessions’s approach rejects the individualized, case-by-case analysis of what punishment is appropriate, and it causes “nonviolent first-time offenders to receive longer sentences than violent criminals.”  Moreover, they point out, overly punitive sentences “do nothing to make the public safer.”  The senators go further, citing Professor Stephanos Bibas — just announced as President Trump’s nominee to the Third Circuit — for the concern that such sentences actually undermine public safety, since prison sometimes “turns small-timers into career criminals.”

Third, the letter exposes that Sessions’s policy shift is not driven by data or any other evidence.  The senators do this through a series of lawyerly questions:

In developing the new policy, did the Department conduct a review to study the effect of its proposed changes on deterrence, public safety, and reducing recidivism? If so, please describe that review process. If not, please explain why the Department opted not to perform such a review.

It is unlikely Sessions conducted any review of this sort. If he had, he would have seen that the studies run in the other direction: longer sentences in low-level cases don’t have a greater deterrent effect, don’t reduce crime, and don’t lower recidivism rates. But Sessions has never really claimed that his commitment to incarceration is evidence-based. He and his close advisors simply believe — whatever the research shows — that heavy-handed, “tough-on-crime” policies are necessary to protect society.  It’s ideological.  And that’s not a responsible way to wield the awesome power of federal prosecution.

Unfortunately, this bipartisan cohort probably will not persuade the Attorney General that he has made a grave mistake. The senators seem to recognize this. As they write in their letter, Sessions’s action “only underscores the need to change the law.” Real reform in the federal system will depend on Congress, not the Attorney General. 

Follow Chiraag on Twitter: @chiraagbains


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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