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Jeff Sessions Wants More Mandatory Minimums, Less Justice

The attorney general is determined to reverse the recent trend toward more judicious use of severe penalties.

C-SPANC-SPANA new report from the U.S. Sentencing Commission (USSC) suggests that charging policies recently rescinded by Attorney General Jeff Sessions resulted in more judicious application of mandatory minimums penalties, shortening prison terms for a substantial number of federal drug offenders. If federal prosecutors follow Sessions' lead, that welcome trend will be reversed, meaning that people who do not belong behind bars (because their only crime is violating the government's arbitrary pharmacological taboos) will spend more time there.

Mandatory minimums have a dramatic impact on the amount of time prisoners serve. "In fiscal year 2016," the USSC notes, "the average sentence length for offenders who were convicted of an offense carrying a mandatory minimum penalty was 110 months [more than nine years] of imprisonment, nearly four times the average sentence (28 months) for offenders not convicted of an offense carrying a mandatory minimum penalty." Because mandatory minimums eliminate judicial discretion, it is prosecutors who decide whether these harsh penalties will be imposed by deciding what charges to bring.

Attorney General Eric Holder issued two memos aimed at encouraging federal prosecutors to put more thought into that process. In 2010 he reminded prosecutors that while they "should ordinarily charge" the most serious provable offense, that decision should not be automatic; rather, it should be based on "an individualized assessment of the extent to which particular charges fit the specific circumstances of the case, are consistent with the purpose of the Federal criminal code, and maximize the impact of Federal resources on crime." Three years later, Holder went further, telling prosecutors they should omit drug weight, which is what triggers mandatory minimums, from charges against nonviolent drug offenders without leadership roles, significant criminal histories, or significant ties to large-scale drug trafficking organizations.

Judging from evidence presented in the USSC report, these instructions had a noticeable impact on charging decisions. Between fiscal years 2010 and 2016, the share of federal defendants convicted of crimes carrying mandatory minimums fell by nearly a fifth, from 27 percent to 22 percent. "In both 2010 and 2013," the commission notes, "the Department of Justice instructed prosecutors to be more selective in charging offenses with a mandatory minimum penalty, specifically regarding certain nonviolent, low-level drug offenders. Thus, it is not surprising to see a reduction in the frequency with which offenders were charged with such offenses."

Consistent with that change, the share of mandatory-minimum defendants who received sentencing relief due to "substantial assistance" or the statutory "safety valve" for low-level, nonviolent drug offenders fell from 47 percent in FY 2010 to 39 percent in FY 2016. That is what you would expect to see if prosecutors became less likely to bring mandatory-minimum charges against low-level, nonviolent drug offenders. Having caught a break at the charging stage, these less serious offenders would not need relief from mandatory minimums at the sentencing stage.

The USSC also considered factors related to violence, which would disqualify defendants from the prosecutorial forbearance urged by Holder. As indicators of violence, the commission looked for sentencing enhancements for use of a weapon, violence, or threats of violence; base offense levels linked to death or serious bodily injury; and convictions for a firearm offenses carrying mandatory minimums. In FY 2016, one or more of these sentencing factors applied in 29 percent of drug trafficking cases with mandatory minimums, up from 21 percent in FY 2010.

The commission also notes that "offenders convicted of a drug trafficking offense carrying a mandatory minimum penalty were more likely to have received an adjustment for aggravating role" in FY 2016 than in FY 2010 and "more likely to have received three criminal history points or more." Those factors, like violence, run afoul of the criteria listed in the 2013 memo.

These trends suggest that prosecutors became more discriminating in bringing mandatory-minimum charges after Holder issued his memos, which is consistent with the results of a recent survey of assistant U.S. attorneys conducted by the Justice Department's inspector general. Nearly half (49 percent) of the respondents said they had changed their charging practices in response to Holder's directives. Another 20 percent said it was already their practice to avoid triggering mandatory minimums for low-level, nonviolent drug offenders.

Sessions, who argues that low-level, nonviolent offenders are essentially nonexistent in the federal system, wants prosecutors to be less discriminating. While he allows for the possibility of lenience in extraordinary cases, such decisions would have to be justified in writing and approved by supervisors. Sessions is trying to establish a strong presumption in favor of bringing the most serious provable charge, leaving little room for "individualized assessment."

After growing steadily for more than three decades, the federal prison population has been shrinking since 2014. The change in the DOJ's charging practices is just one of several factors behind that trend, which also include the lighter crack penalties enacted by Congress in 2010 and the USSC's subsequent changes to federal sentencing guidelines. But as the commission notes, the effects of Holder's policies will continue to be felt for years as drug offenders who avoided mandatory minimums during the Obama administration are released earlier than they otherwise would have been. The same, of course, is true of the harsher approach that Sessions favors: Long after the Trump administration has ended, Americans whose crimes violated no one's rights will remain in cages from which they otherwise would have been freed.

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  • Citizen X - #6||

    Christ, what an asshole.

    Also, if Sessions isn't sitting on an enthusiastic fist in that picture, someone should really tell his posture and facial expression.

  • Hugh Akston||

    He looks like that kid from Malcolm in the Middle all grown up.

  • Chipper Morning, Now #1||

    Fred Savage?

  • Scarecrow Repair & Chippering||

    Arte Johnson or Henry Gibson.

  • Dillinger||

    What Erik Per Sullivan looks like now will shock you.

  • Chipper Morning, Now #1||

    BIGGEST ASSH*LE EVAH!

  • Hugh Akston||

    Surprisingly, Enthusiastic Fist was not Fist of Etiquette's nickname in college.

  • Chipper Morning, Now #1||

    What was it? Unenthusiastic Fist?

  • Mickey Rat||

    "Freaky Fast Fist"?

  • Crusty Juggler - Double Great||

    "Thumb of Etiquette"

  • Half-Virtue, Half-Vice||

    Fist of Rebellion -- I reckon Fist was an angsty youth.

  • Half-Virtue, Half-Vice||

    As we all know Libertatianism is the punk rock of politics.

  • Fear and Loathing in DC||

    Spot on Citizen X.

  • Juice||

    Hey, Sessions. The 80's called...

  • Crusty Juggler - Double Great||

  • Chipper Morning, Now #1||

    On a lunchbox-sized cell phone.

  • Crusty Juggler - Double Great||

    "In fiscal year 2016," the USSC notes, "the average sentence length for offenders who were convicted of an offense carrying a mandatory minimum penalty was 110 months [more than nine years] of imprisonment, nearly four times the average sentence (28 months) for offenders not convicted of an offense carrying a mandatory minimum penalty." Because mandatory minimums eliminate judicial discretion, it is prosecutors who decide whether these harsh penalties will be imposed by deciding what charges to bring.

    At least we can count on the good graces of heartful prosecu -

    *cries*

  • Crusty Juggler - Double Great||

    Three years later, Holder went further, telling prosecutors they should omit drug weight, which is what triggers mandatory minimums, from charges against nonviolent drug offenders without leadership roles, significant criminal histories, or significant ties to large-scale drug trafficking organizations.

    Then Holder went even further, encouraging the President to re-schedule marijuana, and publicly calling on congress to dramatically change federal drug laws, right? Right?

    *cries*

  • Chipper Morning, Now #1||

    [hugs Crusty]

  • Citizen X - #6||

    Gross. Now you both need to take a shower.

  • Crusty Juggler - Double Great||

    *unzips*

  • Chipper Morning, Now #1||

    Your romper has a zipper?

  • Crusty Juggler - Double Great||

    Don't make it weird.

  • Scarecrow Repair & Chippering||

    But not together.

  • Citizen X - #6||

    Welll...

  • Crusty Juggler - Double Great||

    *zips back up*

  • Uncle Jay||

    RE: Sessions Wants More Mandatory Minimums, Less Justice

    Well of course he does.
    That's what oppressors do.
    Duh!

  • Scarecrow Repair & Chippering||

    Nope. Still looks like Henry Gibson or Arte Johnson.

  • Half-Virtue, Half-Vice||

    Whats the going rate on industrial strength woodchippers?

  • Tony||

    But at least Trump doesn't have cankles. Except he does. He does have cankles. And an email scandal.

  • Last of the Shitlords||

    No Tony. Trump has no scandals. You democrats just have your progressive fan fiction about the land of pretend.

    HILLARY had an email scandal. I'm sure you're just confused.

  • Alsø alsø wik||

    Sessions may be an ass and doing this for all the wrong reasons, but in fairness to him, is prosecutorial discretion the solution you really want to see? Mandatory minimums, like civil forfeiture, won't die unless the wrong people get ensnared. When a judge has no choice but to send Al Gore's son, or Biden's cokehead kids, or even Malia Obama to prison then, and only then, will a legislative solution arise. When prosecutorial discretion is the defacto law of the land then it's perfectly ok to let royalty off the hook while punishing serfs.

    And the perps don't need to be anywhere close to that level of fame for minimums to enter the national discussion again. Just start arresting coeds at colleges where tuition exceeds $50K instead of kids on Bronx street corners. Start with all the expensive colleges in the immediate DC area and congress will be rolling back minimums within a month.

    It's like when Eagles coach Andy Reid's kid was caught dealing out of his expensive home in the Philly suburbs. Somehow *that* home didn't get seized and auctioned off, but god help anyone driving through Philly with a little bit of weed and cash on them: say goodbye to whatever car you owned.

  • Elias Fakaname||

    Instead of drugs, he should be focusing on putting democrats in prison. There's a long list of them that are clearly guilty of some heinous crimes. I would think the amount of low hanging fruit in that direction could keep him busy for at least four years. Taking down the Clinton Crime Family alone would be quite an undertaking.

  • Fear and Loathing in DC||

    Your sentiments sort of in the right place, but the answer isn't mandatory minimums on drug use, its to stop allowing ANYONE, royalty or not, from getting put in jail for making personal choices that don't effect others. And if Holder's policies furthered that more than mandatory minimums do, I'm for them.

  • Hank Phillips||

    There is another way--vote libertarian. The LP abortion platform plank of 1972 so scared the GOP that La Suprema Corte wrote it into Roe v. Wade to steal our thunder. The 1894 income tax was a response to the People's Party getting 9% of the vote. If either kleptocracy party had gotten the LPs 4 million votes, they'd be in with the popular AND electoral votes. Just as the Prohibition party managed its competitors and the Greens maneuvered the Dems into forgetting repeal and going for carbon taxes and energy crippling, so LP spoiler votes will cause the other kleptocrats to change their platform or get La Suprema Corte to change the law for them. Any way you look at it, we win. To them, losing is NOT having a hand in the till and government checks coming in.

  • AD-RtR/OS!||

    Your "less justice" is my keeping thugs locked up where they can only hurt each other.

  • No Yards Penalty||

    Take it back to the Federalist, Grand Wizard AD.

  • Patrick Carver||

    Another troubling piece of this mandate is that it seems probable prosecutors will be filing Title 18, Section 851 motions that double mandatory minimum sentences in cases where a defendant has a prior drug related felony conviction. [Source: https://carvercantin.com/sessions-war-on-drugs/].

    With 97% of all federal prosecutions ending in guilty pleas, the fair-sentencing gains made in a bi-partisan matter over the past 8 years will be gone.

  • Hank Phillips||

    Why not? The Republican party pushed through Wesley Jones' "Five and Ten" law, just days before Herbert Hoover took office. That called for five years' hard time and a dollar fine that would have fetched 15 POUNDS of gold for the felony of producing, transporting or selling light beer. Young Beauregard must've wet his knickers with glee!

  • IMissLiberty||

    Serve jury duty every chance you get. Refusing to convict is the only way to stop such injustices as often happen under mandatory minimums.

  • Rogers1234||

    And the judges need to ignore mandatory minumums

  • Jacks61||

    Better check his stock portfolio. Private prisons are big business. But really it's more of the same bull crap. An over reaction from the 80's-90's when sentencing varied greatly.

    If judges cannot be entrusted to give appropriate punishment for each case, what's the point? I guess stop and frisk is coming back too? Ramp up those plea (extortion) deals.

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