President Donald Trump’s commitment to a “tough on crime” ethos was on full display last month when his Attorney General Jeff Sessions issued a directive to federal prosecutors to charge the most serious provable offense and seek the longest possible sentence in federal criminal cases. The Sessions memorandum overturned previous Department of Justice policy initiated by former Attorney General Eric Holder that had called on prosecutors to use their discretion to avoid imposing mandatory minimum sentences in low-level drug cases.
The policy change comes at a time of growing bipartisan consensus to limit mass incarceration by implementing criminal justice reforms at the federal, state and local level. Indeed, Louisiana lawmakers this month took their first steps towards dismantling that state’s first in the nation incarceration rate. Sessions’ effort to revive decades-old thinking about crime and punishment counters this narrative. It will inevitably contribute to a rise in the federal prison population and will be counterproductive to promoting public safety.
In the past several years the federal prison population has declined from a high of about 220,000 in 2013 to 190,000 today. This reduction was achieved through several policy initiatives. Congress adopted the Fair Sentencing Act in 2010, which reduced the sentencing disparity between crack cocaine and powder cocaine and resulted in shorter prison terms for thousands. The U.S. Sentencing Commission enacted reforms to its drug offense guidelines, and applied them retroactively, so that nearly 30,000 individuals will benefit from an average two-year reduction in their prison terms. And the Holder memorandum contributed to a reduced focus on lower-level drug cases and a shift toward more serious drug cases involving weapons.
The Obama administration’s Smart on Crime initiative was premised on evidence collected since the advent of the War on Drugs examining drug markets, penalty structures and racial disparity leading to a conclusion that most mandatory minimum sentences applied to federal drug crimes were disproportionate. The average defendants facing lengthy terms were not the “kingpins” of the drug trade, but rather street-corner sellers and couriers in the lower levels of drug organizations. Consequently, Holder directed federal prosecutors to avoid bringing charges that would trigger 5, 10, and even 20-year prison terms in cases where defendants had minimal criminal records.
The new Sessions directive is based on three familiar but faulty assumptions: (1) that tougher sentences will deter crime; (2) that the rise in homicides in recent years has been due to prison releases; and (3), that charging the most serious offense is “moral and just, and produces consistency.”
Research over many decades has concluded that deterrence is primarily a function of the certainty of punishment, not its severity. If we can increase the odds of apprehension then some people will refrain from crime. Merely extending the length of already severe sentences does little to deter crime. Most people contemplating criminal behavior are not thinking they will be caught, and so are not focused on the scale of punishment and are unfamiliar with statutory penalty structures anyway. Further, if harsh sentencing were the way to produce public safety we should be the safest nation on earth since we lead the world in the use of incarceration. Sadly, that’s not the case.
Sessions and some of his DOJ colleagues point to the rise in homicides in Chicago and a few other cities in the past couple of years and conclude that federal prison population reductions have brought about this new uptick in crime. But since the federal prison system only houses about 13 percent of the nation’s prison population it’s difficult to see how it could have a major impact on overall crime. Further, murder rates in Chicago are certainly troubling, but many other large cities have maintained relatively stable rates. Crime trends are best understood by examining variations in local conditions. These include factors such as local policing strategies, rates of concentrated poverty, access to employment and education, and the availability of illegal firearms. Federal sentencing policy has little direct connection with these factors.
Finally, Attorney General Sessions states that his policy is designed to promote fairness and consistency. We should all support fairness, of course, but the new policy overlooks the driving forces that have produced unfairness. In the name of placing a premium on uniformity the rigid policy directive fails to recognize that no two people and offenses are exactly alike.
Consider two individuals who have been convicted of mid-level drug sales. One is part of a drug distribution network and makes his living selling drugs. The other is addicted to narcotics and is using the drug proceeds to feed her habit. Consistency might mean that they should both receive the same sentence, but would that be fair or just? Federal judges are more than capable of balancing the goal of public safety with a concern for individualized justice.
The “one size fits all” policy being implemented by Sessions fails to recognize that public safety resources are finite and should be used wisely. It also is based on an assumption that a measure of justice is the length of prison terms. His crime and justice philosophy contradicts research and the growing number of prosecutors around the country who view their role as seeking justice, not punitiveness. The attorney general would do well to reconsider this new initiative and engage in a broader conversation about how to meet the linked goals of public safety and justice.
Marc Mauer and Kara Gotsch are, respectively, executive director and director of Strategic Initiatives of The Sentencing Project, a research and advocacy organization based in Washington, D.C.