In a move expected to swell federal prisons, Attorney General Jeff Sessions is scuttling an Obama administration policy to avoid charges carrying long, mandatory-minimum sentences against less serious, nonviolent drug offenders.
Mr. Sessions’ new guidelines revive a more aggressive charging policy created under President George W. Bush that tasked federal prosecutors with charging “the most serious readily provable offense.”
“This policy affirms our responsibility to enforce the law, is moral, and just and produces consistency,” Mr. Sessions wrote in the memo, which was distributed to federal prosecutors late Thursday.
It is the latest and most significant step by the new administration toward dismantling President Barack Obama’s criminal justice legacy. And it goes against a trend in state capitals—including several led by conservative Republicans—toward recalibrating or abandoning the mandatory-minimum sentences popularized during the “war on drugs” of the 1980s and 1990s.
In a sign of a growing bipartisan movement to reduce incarceration, the Justice Department memo drew criticism from across the political spectrum, including conservative voices like the Freedom Partners, a business coalition, and Republican Sen. Mike Lee of Utah. “To be tough on crime we have to be smart on crime. That is why criminal justice reform is a conservative issue,” Mr. Lee said in an indirect swipe at Mr. Sessions’ new policy on Twitter.
The harshest attacks came from congressional Democrats and civil rights leaders who say mandatory-minimum sentences drain tax dollars and damage minority communities. The author of the defunct charging policy, former Attorney General Eric Holder, the first African-American to hold that job, issued a harsh rebuke. “It is dumb on crime,” he said. “It is an ideologically motivated, cookie-cutter approach that has only been proven to generate unfairly long sentences that are often applied indiscriminately and do little to achieve long-term public safety. “
Federal prosecutors, who often rely on the threat of harsh sentences to make their cases, applauded the move, arguing the tough penalties are necessary to keep the public safe. Lawrence Leiser, president of the National Association of Assistant U.S. Attorneys, said the new policy “will restore the tools that Congress intended Assistant U.S. Attorneys to have at their disposal to prosecute drug traffickers and dismantle drug trafficking enterprises. “
Detractors of Mr. Obama’s policy on mandatory minimums say it was too soft on drug offenders who could be carrying as much as a kilogram of heroin, five kilograms of cocaine or 1,000 kilograms of marijuana—all of which come with sentences of at least 10 years. Under Mr. Obama, such offenders could avoid that mandatory-minimum sentence if they didn’t use a weapon, supervise other drug dealers, sell drugs to a minor or belong to a gang.
“These are not low-level drug offenders. These are drug dealers, and drug dealers are going to prison,” Mr. Sessions said in a speech Friday in New York City.
Mr. Sessions, a former U.S. attorney and state attorney general in Alabama, also handed prosecutors some wiggle room in the new guidelines, saying they may seek exceptions to charging the “most serious readily provable offense” if they document the reasons and obtain a supervisor’s approval.
“There will be circumstances in which good judgment would lead a prosecutor to conclude that a strict application of the above charging policy is not warranted,” the memo said.
Mr. Sessions has hinted for months that the new policy was coming and suggested that lighter sentencing was helping fuel a surge in violent crime and opioid use. The violent crime rate rose by more than 3% and the murder rate grew 10% from 2014 to 2015, and preliminary 2016 FBI data show those rates increased again in 2016.
Critics of the administration’s “tough on crime” agenda say the uptick in violence in the U.S. is largely fueled by a higher murder rate in a handful of big cities, particularly Chicago. That calls for a more targeted approach instead of a new nationwide policy, they say. The violent crime rate, despite recent increases, is about half of its peak in 1991.
Mr. Obama used his clemency power more than any president since Harry Truman as part of a broader effort to release nonviolent drug offenders from prison. He was the first president in decades to leave with a smaller prison population than when he arrived.
That trend is expected to reverse under President Donald Trump, who has put law and order at the center of his agenda. In February, Mr. Sessions revoked an Obama administration directive to gradually reduce the Justice Department’s contracts with for-profit prison operators, saying the reduction would interfere with meeting the demands of the prison population.
In the last five years, more than a dozen states have either raised the threshold for the quantity of drugs needed to trigger mandatory-minimum sentences, shortened the sentences or eliminated them altogether, according to Families Against Mandatory Minimums, a nonprofit group.
Earlier this week, the Republican governor of Iowa, Terry Branstad, eliminated mandatory minimums for the lowest level of drug felonies and made about 200 prisoners currently serving long sentences eligible for parole. Republican governors in Oklahoma and North Dakota have also eased their mandatory minimum laws in recent weeks.
State policies can have a big impact on the criminal justice system because only 10% of the prison population is in federal custody.
“The feds set a tone for the country, but I don’t think anything Sessions says is going to change the trend not to rely on mandatory minimums,” said Mike Freeman, president-elect of the National District Attorneys Association and a district attorney in the county that includes Milwaukee. “People recognize that mandatory minimums are a bit harsh and don’t allow the flexibility we believe the system needs.”
Write to Beth Reinhard at firstname.lastname@example.org