The directive by Attorney General Jeff Sessions for federal prosecutors to seek the maximum in criminal cases is a step back for justice, public safety and race relations. With crime rates low and falling and local prosecutors in many states looking to target their resources toward violent criminals, this directive embraces a wasteful approach that will needlessly ruin lives, clog the courts and distract law enforcement from pursuing more dangerous criminals. U.S. attorneys should continue to use their discretion even under this order to balance toughness with their larger obligation to charge responsibly.
The move reverses an effort by the Obama-era attorney general, Eric Holder, to move way from harshly prosecuting nonviolent crimes. Sessions called for more uniform punishments, embraced mandatory minimum sentences and urged prosecutors to pursue the toughest charges available. Though Sessions characterized the move as giving discretion to prosecutors, the order does no such thing. And it exposes the big divide between the Trump administration and many states, where local prosecutors are reforming the state courts for the better.
Sessions’ order reinstitutes the outdated thinking of the 1980s and ‘90s, when state and federal officials were grasping to come to terms with drug-induced crime and violence. But violent crime in the United States has dropped sharply over the past quarter-century; the level in 2015, the most recent full year available, was nearly 17 percent below that of 2006.
In 2014, the first full year that Holder relaxed charging policies for nonviolent drug cases, the department prosecuted fewer low-level drug cases overall and dramatically cut the number of mandatory sentences sought. At the same time, the department prioritized more serious cases. This was a smarter approach that targeted big threats to public safety, and now with Sessions’ directive, the federal judiciary is set to move in the wrong direction.
In recent years, states have beefed-up substance abuse counseling, job training and other programs seeking to target the root causes that drive many to crime. In fact, 31 district prosecutors nationwide signed a letter voicing opposition to Sessions’ moves.
The vast majority of criminal cases are handled in state, not federal courts. But this policy will only underscore the negative impacts already present across the criminal justice system. By seeking mandatory sentences, prosecutors will exacerbate the racial disparities in place. The American Civil Liberties Union reported three years ago that the sentences imposed on black males in the federal system are 20 percent longer than for whites convicted of similar crimes. The same disparities exist at every stage of the case, including in the decision about whether to offer black defendants a plea deal.
Sessions’ directive allows for downward departures, but he warned prosecutors to consider that move “carefully,” and any such decision must be approved by superiors and documented. This will have a chilling effect on trial attorneys. Prosecutors should continue searching for the right balance that serves both justice and the law. The criminal justice system cannot be remade as a bottomless hole for people or the public’s money. That didn’t work before and it won’t now.