In a two-page memo issued Friday, Attorney General Jeff Sessions advanced another step forward in his war against a mythical crime wave. The memo, Department Charging and Sentencing Policy, called for all federal prosecutors to “charge and pursue the most serious, readily provable offense” for federal crimes, including drug offenses. Sessions argued that such an approach was “moral, just, and produces consistency,” emphasizing the importance of advancing “public safety” and promoting “respect for our legal system.” New York magazine called the memo Sessions’ “first big step toward bringing back the war on drugs.” A spokesperson for the ACLU, Udi Ofer said that Sessions was risking the repetition of a “vicious cycle of incarceration.”
In particular, Sessions’ memo resurrects federal drug laws’ emphasis on mandatory minimum sentencing requirements. These minimums provide lengthy compulsory penalties for specific amounts of drugs, virtually removing judges’ discretion. A 2010 study by the United States Sentencing Commission concluded that mandatory minimums were a key contributor to mass incarceration as well as a major factor in the disproportionate incarceration of Black and Latinx people.
Sessions’ memo rescinds moderate reforms put in place by Obama Attorney General Eric Holder beginning in 2013, which aimed to reduce the use of mandatory minimums. In two path-breaking memos, Holder urged prosecutors to construct charges for those with low-level drug cases so as to avoid triggering the mandatory sentences. Commentators like Terry Carter of the American Bar Associated characterized Holder’s memo as “a sweeping reversal of the War on Drugs.” Holder himself issued a statement on Twitter, describing Sessions policy as “not tough on crime” but “dumb on crime” destined to generate “unfairly long sentences.”
By contrast, the Sessions memo instructs prosecutors to “disclose to the sentencing court all facts that impact” sentencing, and recommends strict application of the guidelines for mandatory minimums.
Stepping Up Law and Order
This action by Sessions is the latest move in the Attorney General’s efforts to step up the “law and order” agenda of the Trump administration. Previous measures by the attorney general include adding more judges to immigration courts in the Southwest, pulling out of a federal consent decree involving investigating police misconduct in Chicago, modifying a federal appeal of a compulsory ID law in Texas, reversing former Attorney General Loretta Lynch’s order to block funding for schools that discriminated against transgender people, and the hiring of long-time drug warrior and mandatory minimum advocate Steven Cook to head the new Task Force on Crime Reduction and Public Safety.
Social justice activists were quick to condemn the Sessions memo. Paul Wright, executive director of the Human Rights Defense Fund, told Truthout, “Sessions’ memo seems to be a reiteration of the de facto practice of federal prosecutors for the past fifty years to overcharge defendants and continue the federalization of petty offenses in order to secure lengthy federal prison sentences.”
Members of Families Against Mandatory Minimums, a nonprofit organization that represents families whose loved ones who are “forced to serve disproportionately lengthy prison sentences,” noted in a media release that they are “greatly disappointed” with the memo. They called Sessions’ strategy “misguided, unsupported by evidence, and likely to do more harm than good.”
Wright noted that the federal prison population has grown from 21,000 people in 1970 to over 200,000 today. While this figure did decline in the final years of the Obama administration, Sessions’ actions make future spikes in federal incarceration highly likely.
It should be noted that Sessions’ reach solely applies to the federal system, where less than 10 percent of the incarcerated population resides. The vast majority of incarcerated people are held in state prisons and local jails. However, while this memo may not directly impact them, it will likely contribute to reasserting the ethos of punishment and repression in law enforcement in all spheres.
In addition to promoting this administration’s law and order agenda, the timing of the memo reflects a likely desire to deflect popular attention from the spate of scandals and alleged lawbreaking within the Trump administration, which have become the main fare of national news reports. In choosing this moment to resurrect the demons of the war on drugs, perhaps Sessions is aiming to distract voters from Russian connections, failed health care initiatives and inexplicable drone attacks on faraway lands.
Regardless of the rationale behind the timing, this move constitutes a painful regression — a reminder of the policies that landed people like Clarence Aaron lifetime sentences for minor drug offenses as part of the tough on crime policies of the 80s and 90s. Aaron received a commutation from President Obama in 2013 after serving 20 years on crack cocaine charges. But with Sessions and Trump at the helm, thousands of poor people of color may once again face decades behind bars as a result of a racialized dragnet of the Drug War born again.