Trump Bump on Federal Sentencing Divides Criminal-Justice Experts

NEWS ANALYSIS

WASHINGTON (CN) – With federal prison populations having hit their lowest level in a decade under President Barack Obama, criminal-justice experts are grappling with the new administration’s push for tougher sentences.

Attorney General Jeff Sessions signaled a shift earlier this month in a memorandum that directs federal prosecutors to always charge the “most serious readily provable offense.”

Though the announcement prompted alarm among reform-minded advocates, it was hardly out-of-character for Sessions. Prior to taking on his new role at the Department of Justice, Sessions had been one of the few holdouts on a bipartisan sentencing-reform bill that would have reduced mandatory-minimum sentences for nonviolent offenders. The bill died in the Senate last Congress.

Discussing the directive in an interview, a former colleague of Sessions found the attorney general’s objective hard to pin down.

“I want to know exactly what he means in real-life practical terms because my understanding is that prosecutors will retain discretion as they do now,” Sen. Richard Blumenthal, D-Conn., said. “And I understand that he wants to seek longer terms. In some instances that effort has proved futile and counterproductive, but I don’t know what the specifics are.”

Though the attorney general has said that the new policy is geared at making charging policies consistent, reform-minded advocates say it will result in people spending longer in prison without a demonstrable effect on crime.

“It’s good that justice in Alabama looks the same as justice in California,” Ames Grawert, counsel at the Brennan Center for Justice, said in an interview. “But if the way you achieve that uniformity is taking power out of the hands of judges and taking power out of the hands of prosecutors — who might have very well-informed opinions about how to fit the punishment to the crime — you might get that uniformity but at the expense of justice.”

Among the groups that have supported the Sessions memo are the National Association of United States Attorneys and the National Sheriff’s Association.

Lawrence Leiser, president of the federal prosecutors’ group, said the policy does nothing more than respect the mandatory sentence lengths Congress has laid out for federal crimes.

“What Congress decided to do is that there are certain kinds of criminal offenses, serious, significant criminal offenses, which they feel should be consistently enforced throughout the country and not left up to the discretion of individual judges,” Leiser said in an interview.

[blockquote author=”Ames Grawert, counsel at the Brennan Center for Justice” style=”1″]You might get that uniformity but at the expense of justice.”[/blockquote]

The Brennan Center’s Grawert meanwhile questioned what meaningful effect on equality is achieved by making people spend more time in prison than their crime deserves.

“While sending more people to prison for longer might have an effect on the most dangerous offenders, our research shows it probably won’t have the same effect on lower-level offenses,”

Compounding debate on the issue, the effects of longer prison sentences on prison populations are not well studied, and partisanship usually undercuts attempts by Congress to legislate on sentencing.

The number of people in federal prisons has gone down in recent years after reaching a peak of more than 219,000 in 2013. It was that year, under Obama, that Attorney General Eric Holder revised the charging policies so that prosecutors would have greater flexibility to take into account a defendant’s history when charging nonviolent drug offenders.

[blockquote author=”” style=”null”]Federal prisoners account for less than 13 percent of the total number of people behind bars in the United States, with the vast majority being in state and local facilities and not under the purview of Sessions’ memo.[/blockquote]

Though the federal prison population reached its lowest level in a decade last year, according to Bureau of Prisons statistics, the Brennan Center’s Grawert cautioned against crediting Holder for this drop.

“There’s a slight correlation-causation problem, but I think it’s not too bold to say that I think we’ll see a reversal of that under Sessions,” Grawert said. “Because we’ll see more people charged with more serious offenses carrying longer prison terms, many of them mandatory minimums on relatively minor crimes.”

The sentencing and charging guidelines that Sessions changed apply only to federal prosecutors charging federal crimes. Federal prisoners account for less than 13 percent of the total number of people behind bars in the United States, with the vast majority being in state and local facilities and not under the purview of Sessions’ memo.

“We assistant United States attorneys enforce the federal law, we don’t enforce state law,” said Leiser, representing the federal prosecutors group. “There’s a lot of conflating of state and federal law on this issue, and people tend to combine them and treat them all as one.”

Congress could also always step in and undermine Sessions’ efforts by completely changing the penalties for federal offenses. Sen. Chuck Grassley, one of the sponsors of the bipartisan Sentencing Reform and Corrections Act, said Congress is still waiting on word from the Trump administration on criminal-justice-reform measures, but said the Sessions memo changes little about what Congress can do on the subject.

“I don’t think there’s anything inconsistent [with] what we’re trying to do because we haven’t changed a lot on mandatory sentencing,” Grassley, an Iowa Republican, told reporters last week.

[blockquote author=”Rep. Bobby Scott, D-Va., sponsor of the Justice Safety Valve Act” style=”null”]Mandatory minimums have been studied extensively and have been found to distort rational sentencing systems, discriminate against minorities, waste money and often require a judge to impose sentences that violate common sense.”[/blockquote]

A bipartisan group of lawmakers introduced another criminal-justice-reform bill last week called the Justice Safety Valve Act. With certain crimes, if the defendants meet a set of criteria, the bill would allow judges to impose sentences below the mandatory minimums.

Such a measure, if approved, could undermine the new Sessions policy. Rep. Bobby Scott, a Virginia Democrat who sponsored the bill in the House, explained why.

“Attorney General Sessions’ directive to all federal prosecutors to charge the most serious offenses, including mandatory minimums, ignores the fact that mandatory minimums have been studied extensively and have been found to distort rational sentencing systems, discriminate against minorities, waste money and often require a judge to impose sentences that violate common sense,” Scott said in a statement. “To add insult to injury studies have shown that mandatory minimum sentences fail to reduce crime. Our bill will give back discretion to federal judges so that they can consider all the facts, issues and circumstances before sentencing.”

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