Tougher Federal Sentences for Drug Offenders Coming

Attorney General Jeff Sessions instructs prosecutors to seek the most serious sentences when charging criminals.

(photo: Offstock/Shutterstock via CNA)

WASHINGTON — Attorney General Jeff Sessions has directed federal prosecutors to seek the strictest charges in their cases, reversing Obama administration policies that sought to avoid mandatory minimum sentencing for low-level, nonviolent drug offenders.

Mandatory minimum sentences are congressional statutes that require a judge to follow prescribed guidelines for certain crimes. While drug offenses are not the only type of crime covered by mandatory minimums, they account for the majority.

In a May 10 memo, Sessions said that federal prosecutors had a responsibility to fulfill their role in a way that “accords with the law, advances public safety, and promotes respect for our legal system.” A core principle of their service is to “charge and pursue the most serious, readily provable offense,” which entails the heaviest sentences.

In remarks at the Justice Department, Sessions said, “This is a key part of President Trump’s promise to keep America safe.”  

The memo reverses a 2013 order by Attorney General Eric Holder that changed how federal attorneys were to prosecute “certain nonviolent, low-level drug offenders.”

Prosecutors were instructed to avoid mandatory minimum sentences for drug offenders, as long as they lacked a significant criminal history and had no ties to drug traffickers, leadership in a gang or violent behavior.

According to 2015 data from the United States Sentencing Commission, 71,003 individuals received a federal sentence that year. Of that number, 8,602 people received a mandatory minimum sentence, with drug trafficking accounting for two-thirds of those sentences. The average sentence length in 2015 for drug offenders receiving a mandatory minimum was slightly over 10 years.

Criminal justice reform, including reforming mandatory minimum sentencing, has divided conservatives, with figures like Sen. Ted Cruz, R-Texas, arguing for a “smart-on-crime” approach to federal laws, while others like Sen. Tom Cotton, R-Arkansas, continue to advocate a “tough-on-crime” approach.

In May, there were 188,797 federal inmates, a 10-year low.


No Room for Judicial Discretion

Kevin Ring, president of Families Against Mandatory Minimums (FAMM), told the Register that while the Holder policy prevented prosecutors from charging some criminals, Sessions had pushed his prosecutors in an opposite direction, “which also doesn’t give prosecutors discretion to call it as they see it.”

“You want an efficient criminal-justice system, and that requires precision, making sure a punishment fits the crime,” he said. “You don’t want a one-size-fits-all mandatory sentence that clearly overshoots in some cases.”

As well as the social consequences for the criminal and for his family, said Ring, public money spent on excessively long sentences vacuums up funds that could be spent on other important public-safety measures, like hiring additional police officers. “Everyone knows there’s a cost to punishing someone too little, but there’s an absolute cost to over-punishing, as well,” he said.

“As a matter of public safety, over-punishing has its costs: That’s money you could have been using to do things that would have made us safer.”

In 2015, the average yearly cost of housing a federal inmate was $31,977.65.

Ring compares mandatory minimum sentences to a “blunderbuss,” which takes away individual assessment and judgement of a criminal’s case. But while the laws originally authorizing mandatory minimums were meant to aim for more consistency in sentencing, Ring said that they left discretion in the hands of prosecutors who “decide whether to charge anyone at all and what sentences to seek.”


Upholding the Rule of Law

Sean Kennedy, visiting fellow at the Maryland Public Policy Institute, told the Register, “That a conservative, Republican administration returns to conservative, Republican tough-on-crime principles is not shocking.”

Sessions’ memo represents a return to constitutional order, he said.

“If Congress wants to change the law, Congress has every right to change the law,” Kennedy said. “But as the executor of the law, and someone who upholds the rule of law, it is Jeff Sessions’ obligation to uphold what is the current law, and that is the mandatory minimums for the crimes put forward.”

“When you start getting into the discretion of the attorney general to decline to charge people with crimes they committed, you get onto a slippery where prosecutors’ whims become the law of the land. And that isn’t the rule of law,” he said.

In addition to Sessions upholding the rule of law, Kennedy said that Sessions was strengthening the hand of prosecutors in plea-bargaining with defendants.

“Most federal cases are plea-bargained, so when a prosecutor charges something, it’s like a negotiating position, and you can negotiate from a point of strength or a point of weakness,” Kennedy said.

Holder’s instruction to federal prosecutors not to charge mandatory minimums under certain conditions weakened the hand of prosecutors, he explained, by removing drug charges that could imprison people prosecutors suspected, but could not prove, had committed additional crimes.

Kennedy pointed out that while mandatory minimums are a valid tool in the criminal-justice system, there were other factors that hadn’t been adequately engaged yet. Addiction, and its role in bringing people into drug trafficking, has to be met head-on. In addition, he said, “we need a redemption policy.”

“Right now, our criminal-justice system is built on two pillars, redemption and punishment,” he said. “And we’re really bad at one of those.”

The recidivism rate of federal prisoners, which has been estimated between 49% and 77%, indicates that prisoners are not being reformed by their time in prison.

“We need to improve re-entry programs, so that people return to productive lives,” said Kennedy. Education, providing post-release support, family assistance and employment, he said, are all important factors in preventing a spin cycle of criminal behavior.


Role of the Laity

Michael O’Rourke, a policy adviser with the Office of Social Development at the U.S. Conference of Catholic Bishops, told the Register that the bishops have consistently opposed mandatory minimum sentencing. Mandatory minimum sentences have contributed to the United States having the highest incarceration rate in the world, which “comes at a very high human cost, and disproportionately affects the poor and minority communities.”

In addition, O’Rourke said, the USCCB has always advocated that “punishments be fitted to the specific crime. And the concern is that when you take this out of a judge’s hands in a specific case that’s not happening.”

In testimony submitted to the House of Representatives in 2015, the USCCB said, “One-size-fits-all sentencing policies, such as mandatory minimums, are inadequate in addressing the complexities of crime and community safety.”

Safeguarding the community includes punishment, O’Rourke said, but punishment cannot become an end in itself. Instead, it needs to “include a constructive and redemptive purpose.”

“Particularly for nonviolent offenses, the Church supports community-based solutions, with greater emphases on restoration, restitution and healing.”

O’Rourke said that the laity could engage the criminal-justice system through prayer for victims, offenders, courts and prison guards and ministries, and also through supporting those affected by crime.

“We can engage in our local communities by working with victims of crime, working with prisoners and working with parishes that help people who are transitioning back into society,” he said.

Sean Kennedy has a similar challenge for Catholics.

“As a society, and as Catholics, we’ve sort of ignored Christ’s words about visiting the imprisoned,” he said. “That has been erased from the lexicon of the average Christian, that prisoners are people too. They deserve respect and dignity, and we need to give that to them.”


Register correspondent Nicholas Wolfram Smith writes from Rochester, New York.