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Jeff Sessions Re-Escalates the Drug War By Ordering Prosecutors to Seek Maximum Sentences

Congress’ failure to pass criminal justice reform allows the A.G. to reverse the Obama-era policy.

MICHAEL REYNOLDS/EPA/NewscomMICHAEL REYNOLDS/EPA/NewscomIn a memo to U.S. attorney's offices released Friday morning, U.S. Attorney General Jeff Sessions ordered federal prosecutors to seek the toughest charges and maximum possible sentences available, reversing an Obama-era policy that sought to avoid mandatory minimum sentences for certain low-level drug crimes.

While the two-page directive leaves some discretion for prosecutors to avoid federal sentencing guidelines, the overall message is clear: Federal prosecutors have the green light to go hard after any and all drug offenses. "It is a core principle that prosecutors should charge and pursue the most serious, readily provable offense," Sessions wrote in the memo.

"We are returning to the enforcement of the laws as passed by Congress, plain and simple," Sessions said in a speech Friday. "If you are a drug trafficker, we will not look the other way, we will not be willfully blind to your misconduct."

The shift marks the first significant return by the Trump administration to the drug war policies that the Obama administration tried to moderate. In 2013, former Attorney General Eric Holder ordered federal prosecutors to avoid charging certain low-level offenders with drug charges that triggered long mandatory sentences.

The federal prison population dropped for the first time in three decades in 2014, and has continued to fall since, although the Bureau of Prisons is still operating at over its rated capacity.

In a statement released Friday, Holder sharply criticized the new policy, saying it would "take the nation back to a discredited past" and put the Justice Department "back on track to again spending one third of its budget on incarcerating people, rather than preventing, detecting, or investigating crime."

"The policy announced today is not tough on crime," Holder said. "It's 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."

The announcement also drew instant condemnation from criminal justice and civil liberties groups, such as the American Civil Liberties Union, the Brennan Center for Justice, Human Rights Watch, and the National Association of Criminal Defense Lawyers.

In a statement, Families Against Mandatory Minimums (FAMM), a nonprofit that works to repeal mandatory minimum sentencing laws, said it was "gravely disappointed" in Sessions' memo.

"While we appreciate the attorney general's commitment to reducing crime and combating dangerous opioid abuse, we think his strategy is misguided, unsupported by evidence, and likely to do more harm than good," FAMM said. "Indeed, the drug epidemic challenging our country today is a devastating indictment of the one-size-fits-all punishment regime that General Sessions seeks to expand. His charging memo throws decades of improved techniques and technologies out of the window in favor of a failed approach."

For an example of what that one-size-fits-all approach looks like, take one of FAMM's most infamous cases: Weldon Angelos was arrested in 2002 for selling marijuana to an undercover officer on three separate occasions. Angelos was carrying a firearm during one of those transactions, although he never displayed or brandished it, which triggered an automatic sentencing enhancement under federal mandatory minimum guidelines. Despite it being Angelos' first drug offense, the judge in his case had no choice but to sentence him to 55 years in prison. Angelos was 23. He was freed after 13 years in prison last year under an arrangement with U.S. Attorneys. Under less stringent guidelines, a thoughtful prosecutor could have looked at Angelos' case and decided not to push for the sentencing enhancements that added decades to Angelos' prison time.

But thoughtful prosecutors and discretion aren't going to happen under Sessions' new guidance. Instead, we'll get more cases like Angelos, more cases like the thousands of nonviolent drug offenders who received commutations under Obama (and the thousands more who were denied clemency because of dysfunction in the White House and pressure from recalcitrant prosecutors).

While it's easy to point the finger at Sessions, though, Congress ultimately passed the laws the Justice Department is tasked with enforcing. Lawmakers in Congress had a golden window of opportunity over the past three years to revise federal sentencing laws—with bipartisan winds at their back and a friendly administration in White House—and failed miserably. Senate Majority Leader Mitch McConnell wouldn't bring a reform bill to the Senate floor, despite significant compromises to assuage tough-on-crime Republicans like Tom Cotton (R-AR). House leadership, meanwhile, waited for the Senate to move before it brought up a slate of criminal justice bills that had passed out of the House Judiciary Committee. Which of course it never did.

Sessions' policy change drew rebukes from some Republicans in Congress who support criminal justice reform.

"Mandatory minimum sentences have unfairly and disproportionately incarcerated too many minorities for too long," Sen. Rand Paul (R-KY) said in a statement. "Attorney General Sessions' new policy will accentuate that injustice. Instead, we should treat our nation's drug epidemic as a health crisis and less as a 'lock 'em up and throw away the key' problem."

Sen. Mike Lee (R-UT), although he did not directly criticize Sessions, wrote in a tweet Friday morning that "to be tough on crime we have to be smart on crime. That is why criminal justice reform is a conservative issue." Lee has been one of the leading GOP lawmakers pushing for criminal justice reform after being elected to the Senate in 2010. He became a staunch reform advocate, coincidentally, after witnessing Weldon Angelos' case as an assistant U.S. attorney.

One of Angelos' other biggest supporters was Mark Holden, the chairman of Freedom Partners Chamber of Commerce. In a statement, Holden, speaking for Freedom Partners, says "we favor a different approach which requires changing some of the existing federal laws."

"Fortunately, there are already federal reform bills from last year that have broad bipartisan support that will address this issue," Holden says. "These reforms are consistent with those enacted by many states the past 10 years. The states have proven that communities and law enforcement are safer when the punishment fits the crime through sentencing reforms. There are less costly and more effective ways to help low level offenders who aren't a threat to public safety other than incarceration. This is also an issue that receives overwhelming public support from across the political spectrum. In one recent poll, 81 percent of voters who supported President Trump described criminal justice reform as in important priority."

Say, if you're intersted in the power of prosecutors, you should register to attend Reason's upcoming panel discussion on the subject, featuring Fordham University law professor John Pfaff, author of Locked in: The True Causes of Mass Incarceration and How to Achieve Real Reform; Ken White, a criminal defense attorney and former federal prosecutor whom you probably know better as Popehat; and the Reason Foundation's director of criminal justice reform, Lauren Krisai. The event is on May 25 at Reason's D.C. office.

Photo Credit: MICHAEL REYNOLDS/EPA/Newscom

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  • esteve7||

    Oh please, Obama and Democrats don't give a crap about that, just like they don't care about illegals. They could have passed drug reform, amnesty, etc, and they pass Obamacare instead.

    Obama could have rescheduled pot and others with his pen, but didn't.

    Republicans are much worse on the drug war, but it's not like the left does anything about it when they have the power either. Or they spend their time fighting Devos and not sessions

  • colorblindkid||

    What's funny is that this is one of the few areas where Obama was actually able to make changes without Congress.

  • Quixote||

    Definitely a clever move from Sessions (and Trump), which will help distract public attention from the "First Amendment dissent" of a single, isolated judge who foolishly suggests that our nation's leading prosecutors have engaged in an "atavistic" assault on the rights of an American citizen, and that jail is not an appropriate punishment for criminal "parody." See the documentation at:

    http://raphaelgolbtrial.wordpress.com/

  • MSimon||

    Well at least former HSBC Bank Director Comey will no longer be getting in the way.

    Follow The Money

  • Calidissident||

    It is a tallest midget sort of deal. Obama made a few modest improvements, but left a lot to be desired. He could have done quite a bit more himself without abusing his power, and he definitely could have pushed more for action from Congress.

    That said, he's out of office, and Sessions and Trump are the ones in power now. And it looks like they'll be mostly rolling back whatever small improvements Obama did make.

  • Cynical Asshole||

    If they actually did something about the drug war, then they would no longer have that issue as a cudgel to beat up on the other TEAM come election time.

  • Tionico||

    the main thing wants doing about the drug war is to get FedGov OUT of the business of prosecuting ANY drug crimes. Violence, yes, corruption, of course. But ENDING the War on Drugs would go the longest way possible toward reducing crime, violence, HUGE expense..... for what? Nothing.

    With so many factions of FedGov involved in trafficking, and profiteering rackets resulting from it, the War on Drugs will never end.... which is preciely what THEY want..... with a budget like DEA have, far too many jobs are on the line.....

  • Blue Star||

    The last time prison reform came up (brought up by Obama), Boehner agreed, and the Senate was all cool too, till Cruz and Mitch put the brakes on.

    So on the ONE issue that Obama did give a crap about (per you), the Republicans obstruction stymied it, and you trot out the Republican canards.

    "Amnesty"? You mean the one that is touted by windbags, or the routine ones where plea bargains are struck as if they were going out of fashion.

    Any illegal employers arrested yet, asshole?

  • Chipper Mourning Somali Roadz||

    Corellon, what an asshole.

  • Liberty, Truth and Honor||

    "We are returning to enforcing laws"

    Bullshit, most of those federal statutes depend upon a dishonest interpretation of the commerce clause and thus are unlawful!

  • Calidissident||

    Pretty funny how the Prohibitionists of the early 20th century didn't realize that they wasted a bunch of time getting a Constitutional amendment to ban alcohol.

  • Liberty, Truth and Honor||

    And this from an administration that ordered the IRS to stop enforcing the mandate. More hypocrisy.

  • aajax||

    A lot of talk about how illegal immigration is unfair to the immigrants who followed the rules, nut nothing said about people who flaunt the mandate being unfair to taxpayers who follow the rule.

  • Blue Star||

    Yet to see an illegal employer being arrested.

  • Lord_at_War||

    People aren't "illegal"- They're "undocumented"... Why should we expect those employers to demand a valid ID when we don't even let election workers do the same?

  • ATXChappy||

    "We are returning to the enforcement of the laws as passed by Congress, plain and simple,"

    I'm probably going to be flamed for this. But, he's got a point. Maybe this will be the catalyst that makes congress actually do their job and change the horrible laws on the books. If the laws are that bad, and they are, then they should be changed. Laws aren't supposed to be subject to the whims of the current dictator in chief. And, let's not forget what Abraham Lincoln said about bad laws. "The best way to get a bad law repealed is to enforce it strictly."

  • Liberty, Truth and Honor||

    Yeah I've had that thought too but usually the enforcing is not uniformly applied in the real world so the public doesn't really feel the effects of these tyrannical laws.

  • ATXChappy||

    Agreed. But, I think it makes the problem a lot worse when the entire government is told not to enforce law x or y simply because the current President wants it that way. That's how dictatorships are made. If the President is allowed to force the government from enforcing laws enacted by Congress, it won't be very long before he can force the government to enforce laws plucked from thin air.

  • paranoid android||

    If the President is allowed to force the government from enforcing laws enacted by Congress, it won't be very long before he can force the government to enforce laws plucked from thin air.

    That doesn't follow at all. Law enforcement resources are finite; they only have so much manpower and money to investigate/prosecute crimes. That being the case, there will always be a need to set priorities; this isn't about enforcing laws that have gone entirely unenforced (I know it feeds certain narratives to believe that Obama ordered his people to completely ignore certain crimes, but this is laughably false by any standard), this is about consciously choosing to devote more resources to ruining lives for victimless activity. That is wholly different from making up new laws to enforce for reasons that should be obvious.

    And specifically, this announcement is not about enforcement vs. non-enforcement--this is about going after the maximum punishment over the minimum punishment. So unless you're going to claim that giving drug offenders anything less than the maximum punishment equates to completely ignoring enacted laws, I'm not sure what your point is.

  • ATXChappy||

    "I know it feeds certain narratives to believe that Obama ordered his people to completely ignore certain crimes, but this is laughably false by any standard"

    Really? The Holder memo stated that they wouldn't prosecute people who where in compliance with state law. That doesn't sound like a minimum / maximum paradigm to me.

    "And specifically, this announcement is not about enforcement vs. non-enforcement--this is about going after the maximum punishment over the minimum punishment"

    This is what Sessions said about the memo. "We are returning to the enforcement of the laws as passed by Congress, plain and simple," That doesn't sound like he's simply talking about sentencing guidelines to me.

  • paranoid android||

    This is what Sessions said about the memo. "We are returning to the enforcement of the laws as passed by Congress, plain and simple," That doesn't sound like he's simply talking about sentencing guidelines to me.

    Has it occurred to you that Jeff Sessions is a mendacious statist thug and might be dishonestly framing what he's doing?

  • ATXChappy||

    Occurred to me? My friend, I'm absolutely counting on it. I'll bet you $20 that it won't take more than a month before the DEA starts prosecuting MMJ patients. I hope I'm wrong though, would be the happiest $20 I've ever spent.

  • Hank Phillips||

    The Federal Government, in its papal infallibility, today uses possession of a medical marijuana card as enough preponderance of evidence to make a civil case for deporting uppity foreigners with green cards. They did the same thing with medicinal alcohol in the 1920s--branding beer addicts and wine abusers with "moral turpitude" all but tatooed on their forearms. Many an immigrant found themselves in nationalsocialist gas chambers thanks to Republican and Democratic insistence on mystical prohibitionism as the touchstone for ethical purity.

  • Eman||

    If they don't charge the maximum, the defendant might not take the plea. What are you supposed to do then?

  • aajax||

    Do you realize how many damn laws there are? We would need a government the size of California's population to enforce them all.

  • ATXChappy||

    That's a great argument for changing the laws so they are enforceable. Not for only enforcing the ones the current administration agrees with.

  • marshaul||

    You fucking immoral shitheel, it's not a good argument for enforcing every law, no matter how counterproductive or despicable.

    You're the epitome of a useful idiot, quoting Lincoln's deliberate lie with abandon. Climb in a woodchipper, thanks.

  • Hank Phillips||

    The LP already has an electorate the size of Virginia's to repeal the damn things. So, can they count on your vote?

  • Liberty, Truth and Honor||

    In most places I would agree dictatorship could follow from the selective enforcement of law but I think America is different than most places because of how our Constitution is written. The Constitution was designed to restrict the enforcement of law so our system favors selective uni6vesral nonenforcement while being severely prejudice to the enforcement of non laws. There isn't a legal basis to force the executive to execute laws but there are types of impediments to extralegal executive action.

  • ATXChappy||

    The Constitution wasn't designed to restrict the enforcement of law. It was designed to restrict the government from passing laws that encroach on our liberty. And, it does requires the President to "take care that the laws be faithfully executed." The Constitution isn't a magic shield from tyranny. It's protections don't do us any good if the government isn't actually adhering to it.

  • paranoid android||

    And, let's not forget what Abraham Lincoln said about bad laws. "The best way to get a bad law repealed is to enforce it strictly."

    And how has that attitude worked out for the past 7+ decades of prosecuting the drug war?

  • ATXChappy||

    It hasn't. But, I would argue that's because it hasn't been strictly enforced.

  • Hank Phillips||

    Ulysses Grant and Herbert Hoover repeated that homily.

  • Robert||

    Dave Kahn thought that as a bank examiner.

  • marshaul||

    "The best way to get a bad law repealed is to enforce it strictly."

    More proof that Lincoln had his head up his ass.

  • Cynical Asshole||

    Christ, what an asshole.

  • Cynical Asshole||

    While it's easy to point the finger at Sessions, though, Congress ultimately passed the laws the Justice Department is tasked with enforcing. Lawmakers in Congress had a golden window of opportunity over the past three years to revise federal sentencing laws—with bipartisan winds at their back and a friendly administration in White House—and failed miserably.

    They had - and continue to have - more important things to do. Like "repeal and replace" of Obamacare. There's simply no time to actually do something that might actually help many of their constituents avoid absurdly long stints in a rape cage.

  • Eric Bana||

    You seem to have forgotten that good people don't smoke marijuana.

  • Hank Phillips||

    The immigration courts are ordered never to forget that Reefer Madness is exactly identical to moral turpitude, just like Cocaine Fiends. That's why the Tea, Consta2shun and Nationalsocialist parties all supported the GO-Pee this election.

  • John C. Randolph||

    There is no constitutional authority for the war on drugs. It took an amendment to ban alcohol, and that amendment was repealed. Any act of congress purporting to outlaw drugs is not a law, it is a usurpation.

    -jcr

  • aajax||

    Decriminalization and sentencing reform threaten entrenched state, prison industry, and police union interests. And DOJ/Trump also need something, anything, to distract from Russia.

  • Crusty Juggler aka "Chad"||

    The shift marks the first significant return by the Trump administration to the drug war policies that the Obama administration tried to moderate. In 2013, former Attorney General Eric Holder ordered federal prosecutors to avoid charging certain low-level offenders with drug charges that triggered long mandatory sentences.

    Thanks for enacting an impotent policy that could be easily reversed.

  • Alan Vanneman||

    "Lawmakers in Congress had a golden window of opportunity over the past three years to revise federal sentencing laws"

    I think you mean "Republicans in Congress ..." Impetus for federal sentencing reform was destroyed by Donald Trump's success in rallying the Republican masses with his "carnage in the streets" hysteria. As for Rand Paul, maybe he wishes he hadn't voted to approve Sessions as AG.

  • Ecoli||

    I ALWAYS remember that.

    It was a binary choice. Trump or Clinton. America chose wisely. It was the correct choice in November, and remains the correct choice.

    Thanks for framing the situation so clearly. You are a great American, DanO. Trump made you so.

  • Utilitarian||

    Sometimes I love Rand Paul. Sometimes he's incredibly disappointing. I suppose that's due to the realities of working in government, but man...he's been disappointing me a lot lately.

  • burserker||

    need moar jury nullification!

  • Lord_at_War||

    Well, Obama and his enforcers would be pretty lousy authoritarians if they just allowed people to not buy health insurance with no consequences for their un-Christian, antisocial actions.

    I got a letter from the IRS last week saying I didn't pay my "mandate penaltax" in 2014 - I wadded it up into a little ball and hit the trash can from 18 ft.

  • Rebel Scum||

    Gotta stop that refer madness, I guess...

  • Africanis||

    Don't do druuugs, drugs are baaaad, mmmkayyyy!

  • TGoodchild||

    It's like I always say: "it's better to let 1000 drug dealers back on the street than to keep a would-be drug dealer behind bars for an extra six months."

  • Robert||

    We have to put you in jail so that you can find out what is in it.

  • XenoZooValentine||

    If you like your cell, you can keep your cell.

  • Mike Gates||

    Well, I would point the finger at Sessions. Until very recently he was in Congress.

  • Hank Phillips||

    Oh great! So now we're supposed to stoop to making reference to inconvenient facts?

  • freeewill||

    end the war on drugs, if its legal, the bad stuff wont be on the streets, the war on alcohol ended because they couldnt keep the bad whiskey off the streets

  • Amogin||

    Lovely the AG wants to revive the failed war on drugs, including medical marijuana, which the majority of Americans no longer support. When laws are not respected by the public, they become an invitation to lawlessness- Witness prohibition. Juries won't convict and judges won't sentence when the prosecutor over-reaches. we may be getting an answer to the question "What if they gave a war when no body showed up?"

  • Amogin||

    Lovely the AG wants to revive the failed war on drugs, including medical marijuana, which the majority of Americans no longer support. When laws are not respected by the public, they become an invitation to lawlessness- Witness prohibition. Juries won't convict and judges won't sentence when the prosecutor over-reaches. we may be getting an answer to the question "What if they gave a war when no body showed up?"

  • PG23COLO||

    You can't expect progress against viciously harsh drug laws from prosecutors exercising discretion. They have no incentive to exercise discretion, they career success depends on pleasing superiors who inevitably support the drug laws and the idea that punishment for actions we don't like makes people behave better and makes society safer.

    The problem is the drug laws and the people who believe in criminalizing some consensual behavior, and the people who want to be the cops and prosecutors and judges who enforce criminal laws and impose criminal sentences.

    Drug laws are based on disrespect for individual rights and liberties. That's why they need to be repealed.

    The problem isn't Jeff Sessions or Donald Trump or a Congress afraid to "reform" the drug laws. The problem is that so many people are willing to use the government to coercively impose their views on how other people should live.

  • damikesc||

    Isn't it preferable to change laws rather than simply ignore them?

  • Blue Star||

    Depends.

    If you are a Democrat ignoring laws, DEFINITELY
    If you are a Republican ignoring laws, you go "But Obama/Clinton/Democrats did so..."

    At least at reason.com

  • Jickerson||

    I don't think it's inherently good to enforce laws. If the laws are unjust, we should ignore them, not enforce them, and change them.

  • Jacks61||

    Let me guess, more private prison's again, right Sessions? Better check and track his stock portfolio.

  • Blue Star||

    Disappointed.

    reason.com Republicans acting as libertarians did not go "But Democrats..." on this quite as much as they usually do.

    WAKE UP!

  • billstewart||

    It's time for maximum sentences for government officials who commit perjury.

  • Trigger Warning||

    He is objectively ignorant and cruel.

  • Hank Phillips||

    I'm sure his motives are altruistic and Christian.

  • Trigger Warning||

    I want to know who is promising him what when his term is up.

  • rageon||

    Eighty percent of drug arrests are for simple possession. Even if you buy into the bizarre notion that drug "trafficking" is a crime worthy of punishment, Sessions' message to drug traffickers is based on a lie. The drug war isn't, and never has been, about punishing drug dealers. It's all about the little guy, the low-hanging fruit. Americans are, once again, still, 45 years into this fiasco, being played for fools.

  • Hank Phillips||

    Jeff Sessions is simply preserving Republican values, like those of President George Daddy Bush in Billings Montana, July 20, 1990: "And when I say fast – we need habeas corpus reforms to stop the frivolous appeals that are choking our courts. And final – I'm talking about fair and constitutionally sound death penalty provisions for these major traffickers." Papers of the Presidents (Bush, 1991 Book II 1036-1038)
    If legalizing weed were more important than banning electrical power generation, the Dems would have put prohibition repeal in their platform, like they did when they won in 1932. "Both" parties clearly want bipartisan mandatory minimums and asset forfeiture looting. That's in their platforms.

  • Kafantaris||

    "You want to know what this was really all about? The Nixon campaign in 1968, and the Nixon White House after that, had two enemies: the antiwar left and black people. You understand what I'm saying? We knew we couldn't make it illegal to be either against the war or black, but by getting the public to associate the hippies with marijuana and blacks with heroin, and then criminalizing both heavily, we could disrupt those communities. We could arrest their leaders, raid their homes, break up their meetings, and vilify them night after night on the evening news. Did we know we were lying about the drugs? Of course we did." -- John Ehrlichman

  • LEAPGuyAZ||

    Wait till Barron Trump rebells as a teen and gets arrested for experimenting with whatever, then see how he feels.

  • Eman||

    Who could have guessed back in the innocence of the aughts that we would, within a decade, allow such an unprecedentedly unpresidential vulgarian to despoil our democracy? It almost makes me wish there was some way that we could disperse the government's power enough that elections were a little less consequential (I kid, I know how crazy that sounds).

  • SovereignMary||

    The fanatical zealot Jeff Sessions is a Constitution violating Nimrod who should have never been appointed to be the U.S. Attorney General.

  • CZmacure||

    "We are returning to the enforcement of the laws as passed by Congress, plain and simple,"

    I'm probably going to be flamed for this. But, he's got a point. Maybe this will be the catalyst that makes congress actually do their job and change the horrible laws on the books. If the laws are that bad, and they are, then they should be changed. Laws aren't supposed to be subject to the whims of the current dictator in chief. And, let's not forget what Abraham Lincoln said about bad laws. "The best way to get a bad law repealed is to enforce it strictly."

    Sent from Warlord Case Study Review
    Sent from WP Graphics Toolkit Review

  • b4integrity||

    "We are returning to the enforcement of the laws as passed by Congress, plain and simple," Sessions said in a speech Friday. "If you are a drug trafficker, we will not look the other way, we will not be willfully blind to your misconduct."

    Unless you are a drug trafficker of one of the two most deadly & dangerous of ALL drugs, the uncontrolled substances & hard drugs, tobacco & alcohol.

    Then we will look the other way as we are willfully blind to the misconduct of the tobacco & alcohol drug pushers.

  • swampwiz||

    Uh, a drug dealer that walks around in public with a gun IS a menace to society.

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