Everyone – except Jeff Sessions, it seems – knows that the War on Drugs has been a failure of massive proportions, but the Attorney General is escalating it anyway.
This week, Sessions ordered federal prosecutors to seek the maximum punishment for drug offenses, reversing policy made under former president Barack Obama that was designed to reduce the number of people convicted of certain lower-level drug crimes being given long jail terms.
In a memo to federal prosecutors, Sessions wrote that the change “affirms our responsibility to enforce the law, is moral and just, and produces consistency.”
The memo urged prosecutors to file “the most serious, readily provable” charges that carry the most substantial punishment, including mandatory minimum sentences.
Reversing attempts at reform
Sessions’ directive rescinds guidance by his predecessor, Eric Holder, who told prosecutors they could leave drug quantities out of charging documents in some cases to avoid charging suspects with crimes that trigger long sentences.
The goal of Holder’s 2013 initiative, known as “Smart on Crime,” was to encourage shorter sentences for nonviolent drug offenders and to reserve Justice Department resources for more serious and violent criminals. This change led to a steep decline in the federal prison population, which dropped from nearly 220,000 to 190,000. Nearly half of those inmates are locked up for drug crimes, reports the Associated Press.
Under federal law, mandatory sentences for drug-related offenses range from 5 years to life in prison and are based on the quantity of drugs involved.
“Smart on Crime” allowed judges discretion to set sentences lower than those mandatory punishments.
In announcing his policy, Holder said at the time, “With an outsized, unnecessarily large prison population, we need to ensure that incarceration is used to punish, deter, and rehabilitate — not merely to warehouse and forget.”
Prosecutors were directed instead to focus on the most serious offenses.
Now that will change.
From the Associated Press:
The memo concedes there will be cases in which “good judgment” will warrant a prosecutor veering from that rule. And Sessions said it gives prosecutors “discretion to avoid sentences that would result in an injustice.”
But any exceptions will need to be approved by top supervisors, and the reasons must be documented, allowing the Justice Department to track the handling of such cases by its 94 U.S. attorney’s offices.
And even if they opt not to pursue the most serious charges, prosecutors are still required to provide judges with all the details of a case when defendants are sentenced, which could lengthen prison terms.
Critics respond to changes
Sessions’ changes will subject more lower-level offenders to unfairly harsh mandatory minimum sentences, critics said.
While wanting to reduce violent crime and overdose deaths is admirable, the long and troubled history of the war on drugs should serve as a cautionary tale, opponents pointed out.
Barry Pollack, head of the National Association of Criminal Defense Lawyers, said the new policy “marks a return to the failed policies of past administrations that caused mass incarceration, devastated families and communities, wasted untold millions of dollars and failed to make us any safer.”
“With overall crime rates at historic lows, it is clear that this type of one-dimensional criminal justice system that directs prosecutors to give unnecessarily long and unfairly harsh sentences to people whose behavior does not call for it did not work,” said Udi Ofer, director of the American Civil Liberties Union’s Campaign for Smart Justice.
Sen. Rand Paul, R-Ky., also criticized the change, stating that mandatory minimums have “unfairly and disproportionately incarcerated too many minorities for too long.”
“Attorney General Sessions new policy will accentuate that injustice. Instead we should treat our nation’s drug epidemic as a health crisis and less as a lock ‘em up and throw away the key problem,” Paul said.
Brett Tolman, a U.S. Attorney for Utah under President George W. Bush, said in a statement anticipating the policy change:
“The Justice Department’s expected shift to prosecuting and incarcerating more offenders, including low-level and drug offenders, is an ineffective way to protect public safety. Decades of experience shows we cannot arrest and incarcerate our way out of America’s drug problem. Instead, we must direct resources to treatment and to specifically combating violent crime. This will help law enforcement do our jobs better.”
Michael Collins, deputy director at the Drug Policy Alliance, said in a statement emailed to NPR,
“This is a disastrous move that will increase the prison population, exacerbate racial disparities in the criminal justice system, and do nothing to reduce drug use or increase public safety. Sessions is taking the country back to the 1980s by escalating the failed policies of the drug war.”
FAMM (Families Against Mandatory Minimums), a nonprofit, nonpartisan organization fighting for smart sentencing laws that protect public safety, also issued a statement in response to Sessions’ memo, saying:
While we appreciate the attorney general’s commitment to reducing crime and combating dangerous opioid abuse, we think his strategy is misguided, unsupported by evidence, and likely to do more harm than good. Indeed, the drug epidemic challenging our country today is a devastating indictment of the one-size-fits-all punishment regime that General Sessions seeks to expand. His charging memo throws decades of improved techniques and technologies out of the window in favor of a failed approach.
We know how this story ends. At the beginning, we are told that mandatory minimums will be reserved for the “worst of the worst”—cartel leaders and kingpins, and violent gang leaders. But then we will watch prosecutors demand and get mandatory life sentences for people like Evans Ray and 15-year sentences for first-time offenders suffering from addiction like Mandy Martinson. Even under the Obama administration’s Smart-on-Crime initiative, federal prosecutors secured a 10-year mandatory sentence for Robyn Hamilton, a young mother of two, whose case was called “the poster child” for mandatory minimum sentencing reform.
The simple fact is that 93 percent of individuals who receive mandatory minimum sentences played no leadership role in their offense. Crafted purportedly for sharks, mandatory minimums catch lots of minnows. (To read the rest of the statement, click here.)
Sessions has long been a Drug War supporter
This memo from Sessions should come as no surprise, as he has talked about his desire to amp up the war on drugs for months. Back in November, we reported that Sessions has long been a very vocal opponent of cannabis legalization – even for medicinal purposes. He has also stated that he is a “big fan of the DEA” and is a strong supporter of civil asset forfeiture, the government practice of seizing property when it has allegedly been involved in a crime. In April 2015, during a Senate Judiciary Committee hearing on reforming federal civil asset forfeiture laws, Sessions opposed ANY reform. He claimed police groups across the country told him civil asset forfeiture is an important law enforcement tool. Ending the sharing of seized cash with local departments “would be a huge detriment to law enforcement,” Sessions said.
Today, Sessions gave a speech regarding his memo.
Note that both in the memo and in this speech, Sessions does not mention States’ rights at all.
Under federal law, cannabis remains illegal.
When Sessions says we are “returning to the enforcement of laws passed by Congress, plain and simple” what exactly does that mean?
What about states that have legalized cannabis?
The DEA runs a Cannabis Eradication Program which is largely funded by civil asset forfeiture. States that have legalized marijuana are not immune from that program: In 2015, seizures continued in Washington and Oregon. Full state breakdowns have not been provided, but a DEA spokesman said that just under 36,000 marijuana plants were destroyed in Washington last year at a cost to federal taxpayers of about $950,000, or roughly $26 per plant.
It looks like that will not change.
Back in February, Sean Spicer warned us that the Trump administration would be cracking down on cannabis – even in states that have legalized or decriminalized recreational use.
Sessions states that over 52,000 people have died of drug overdoses- is he including deaths from prescription opiates?
He discusses the heroin epidemic (which was fueled in part by over-prescribing of opiates). That is a legitimate concern. Yet, the DEA is still trying to list kratom, a plant with a long history of safe use that has been shown to help heroin and opiate addicts, under Schedule I. In states with legal marijuana, deaths from opioids have plummeted, yet that plant remains under Schedule I.
Sessions also mentions that drug trafficking is a “dangerous and violent” business. That is true, but a major reason is because drugs are illegal. The legalization of cannabis in some states has already started to kill cartels in those regions. Full legalization would provide safer access to drugs.
In the memo, Sessions says, “For this reason, disrupting and dismantling those drug organizations through prosecutions under the Controlled Substances Act can drive violent crime down.” It is important to remember that cannabis remains listed under the Controlled Substances Act’s most restrictive category: Schedule I.
While Sessions is correct that violent crime has been rising a bit in recent years, it still remains at historic lows.
Repealing all drug prohibition would likely be far more effective than more strict enforcement.
As Melissa Dykes wrote in February:
Not only does opioid addiction go down in states that legalize as has been verified by statistics, but if there is any “violence” around marijuana, it’s due entirely to the black market created by the phony drug war, not the actual drug itself, as pointed out by chairman of the drug policy reform group Marijuana Majority Tom Angell:
“By talking about marijuana and violence, the attorney general is inadvertently articulating the strongest argument that exists for legalization, which is that it allows regulated markets in a way that prohibition does not.”
Prohibition keeps drug cartels in business and needlessly puts thousands of Americans behind bars.
Also in February, Sessions announced that he rescinded an Obama administration decision to phase out the use of private prisons. In a Feb. 21 memo, Sessions wrote that the Obama move had “impaired” the U.S. Bureau of Prison’s “ability to meet the future needs of the federal correctional system.” What those “needs” are isn’t specified, but I think it is safe to assume the crackdown on drug-related crime plays a major role.
Where do we go from here?
Last Friday, President Trump signed an appropriations bill that includes the renewal of a rider that bars the Justice Department from interfering with the implementation of state laws allowing medical use of marijuana, but there’s a catch. As Jacob Sullum of Reason writes,
But Trump signaled in a signing statement that he may decide to ignore that restriction, known as the Rohrabacher-Farr amendment, notwithstanding his repeatedly expressed support for medical marijuana and for respecting state policy choices in this area.
“Division B, section 537 provides that the Department of Justice may not use any funds to prevent implementation of medical marijuana laws by various States and territories,” Trump says in the signing statement. “I will treat this provision consistently with my constitutional responsibility to take care that the laws be faithfully executed.”
The implication is that Trump’s duty to enforce the federal ban on marijuana, which makes no exception for medical use, could compel him to disregard the bill’s limits on the use of DOJ money.
However, Congress shares some of the blame for the continued existence of federal sentencing laws, as C.J. Ciaramella of Reason points out:
Lawmakers in Congress had a golden window of opportunity over the past three years to revise federal sentencing laws—with bipartisan winds at their back and a friendly administration in White House—and failed miserably. Senate Majority Leader Mitch McConnell wouldn’t bring a reform bill to the Senate floor, despite significant compromises to assuage tough-on-crime Republicans like Tom Cotton (R-AR). House leadership, meanwhile, waited for the Senate to move before it brought up a slate of criminal justice bills that had passed out of the House Judiciary Committee. Which of course it never did.
“We favor a different approach which requires changing some of the existing federal laws. Fortunately, there are already federal reform bills from last year that have broad bipartisan support that will address this issue. These reforms are consistent with those enacted by many states the past 10 years. The states have proven that communities and law enforcement are safer when the punishment fits the crime through sentencing reforms. There are less costly and more effective ways to help low level offenders who aren’t a threat to public safety other than incarceration.
“This is also an issue that receives overwhelming public support from across the political spectrum. In one recent poll, 81 percent of voters who supported President Trump described criminal justice reform as an important priority. The states have shown that you can reduce crime rates and reduce incarceration rates at the same time, keep communities safer and families together, while also using taxpayer dollars more effectively. We look forward to working with the Administration and Congress on these vitally important issues.”
Will any of the pending bills that seek to fully legalize cannabis at the federal level pass? There isn’t a lot of incentive for politicians to pass them, considering that the War on Drugs is immensely profitable, especially when you factor in civil asset forfeiture and for-profit prisons – two things that will also be here to stay for the foreseeable future.
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