Attorney General Jeff Sessions’ newly issued sentencing directive to federal prosecutors, revoking the Obama-era Smart on Crime Initiative, is a devastating revival of the War on Drugs.
The repercussions of this move will undoubtedly reverse the decline in the federal prison population of recent years, incarcerate more people engaged in the lower levels of the drug trade, and exacerbate racial and ethnic disparities in the federal criminal justice system.
The War on Drugs in the 1980s fueled a sharp rise in the number of federal drug prosecutions. Growing political and public hysteria had emerged with the introduction of crack cocaine into urban communities, leading to the adoption of harsh mandatory minimum sentences for drugs and their increased prioritization by prosecutors. During a 20 year period beginning in 1986, time served in prison for drug offenses tripled, increasing by more than three years.
Today, people incarcerated for a drug conviction comprise half of the federal prison population. Most are not high level actors or drug kingpins and have limited criminal records. There are more people serving life without parole sentences for drug crimes in federal prisons than for murder, a fact not lost on former President Obama. His 1,700 sentence commutations for drug offenses before he left office included a third who were serving a life sentence.
The impact of these harsh mandatory minimums was also clear to former Attorney General Eric Holder, who instructed federal prosecutors to focus their caseloads on serious drug cases and other crimes. Holder pointed to the limited impact of harsh sentencing on the use and availability of drugs, as well as the harmful consequences of harsh policies, not only for those who were incarcerated, but for their families and communities as well.
Tough sentences were emblematic of the distrust many communities of color held for law enforcement and the justice system. The sentencing disparity between crack and powder cocaine resulted in longer sentences for crack cocaine offenses, 80 percent of which were applied to African Americans.
Law enforcement priorities exacerbated this problem. African Americans are four times as likely as whites to be arrested for drug offenses despite the fact that whites and blacks use drugs at roughly the same rate and that people who buy drugs usually purchase them from sellers of their own racial or ethnic background.
While racial disparity has long plagued every level of the criminal justice system, Sessions’ actions are certain to increase them.
The evidence of the impact of the Smart on Crime policy is clear. The initiative contributed to a 20 percent decline in drug cases being prosecuted from fiscal year 2012 to fiscal year 2015, while the cases that federal prosecutors pursued became more focused on the most serious defendants.
These efforts, combined with the U.S. Sentencing Commission’s adjustments to the sentencing guidelines for drug offenses, led to a substantial decline in the federal prison population. From a peak population of about 219,000 in 2013 the numbers have fallen to about 190,000 today.
Federal prisons are still overcrowded, but substantially less than they were just a few years ago.
A recent statement issued by the American Society of Criminology warned that the Trump Administration’s crime policies “should be built on science, and elected officials at all levels of government have a responsibility to endorse public policies that are evidence-based and that promote fairness, equality, and justice.”
Attorney General Sessions’ new charging and sentencing policy does not adhere to this sound advice. Ultimately, the job of a prosecutor must be to seek justice and fairness, not to gain more convictions or secure long prison sentences.
As the opioid epidemic rages, lessons from the 1980s should not be forgotten. More prisons and prisoners will not end addiction or demand for drugs, but increased access to mental health services and medical care can have a substantial impact.
Mass incarceration and the War on Drugs is a failed experiment, a conclusion that is now shared by legislators and the public across the political spectrum. Rather than reverting to such discredited drug and sentencing policies, we would do better to embrace more effective and more compassionate approaches.
Kara Gotsch is the director of strategic initiatives for the Sentencing Project. Marc Mauer is the Sentencing Project’s executive director. The Sentencing Project advocates for sentencing reform in the criminal justice system.
This op-ed was originally published in The Hill.