May 16, 2017 2:24PM

Sessions’ New Charging Memo

Senator Rand Paul has a column over at CNN, urging Attorney General Jeff Sessions to reconsider his recent memo to federal prosecutors that encourages them to seek serious charges and mandatory minimum sentences. Here’s an excerpt:

The attorney general’s new guidelines, a reversal of a policy that was working, will accentuate the injustice in our criminal justice system. We should be treating our nation’s drug epidemic for what it is — a public health crisis, not an excuse to send people to prison and turn a mistake into a tragedy.

And make no mistake, the lives of many drug offenders are ruined the day they receive that long sentence the attorney general wants them to have.

Read the whole thing. To put this latest move into some perspective, several points need to be kept in mind. First, like his earlier crime‐​fighting memos, this is consistent with what Republican administrations do. That is, they reverse the executive orders that the Democrats put in place. Sessions is reversing the policies of Eric Holder and restoring the charging policies that Former Attorney General John Ashcroft had in place. Second, media reports that Sessions is bringing back the drug war are exaggerated because, as Professor Doug Berman noted, the war never went away under Obama. Third, Trump and Sessions do not “oversee” the American criminal justice system. The criminal system is decentralized among the states. The federal system has been growing but is around 10 percent of the overall system. So while Sessions gets a lot of attention, most of the action quietly occurs at the state and local level.

That said, Sessions is definitely moving in the wrong direction. He is a strong proponent of mandatory minimum sentences, which have the effect of transferring power from impartial judges to ambitious prosecutors. And they are so rigid that they too often lead to injustice – especially in drug cases where the quantity of drugs can be the primary factor instead of a person’s culpability. Low‐​level mules get severe sentences for example driving narcotics from one city to another.

Sessions also conflates drug enforcement with the violent crime that is the primary concern of most Americans. He believes that more drug busts can have a real impact on violent crime. He is badly mistaken about that. When the police lock up a rapist or a mugger, that enhances public safety. Drug busts have little impact. The street dealers and mules are quickly replaced and the black market trade continues as before. 

Lately, Sessions has been making the observation that drug dealers have to resort to violence to resolve their disputes. There is truth to that, but that has always been a part of the conservative/​libertarian critique of the drug war policy. During the days of alcohol prohibition, newspapers reported on the “beer wars” in the cities. After prohibition ended, no beer wars. We would see the violent crime rate decline if the drug war were to end. 

Senator Paul is right about the need for sentencing reform, but even modest steps in that direction are likely to be opposed by Trump and Sessions. State and local leaders have to take the lead on criminal justice reform.