Jeff Sessions recently released a memo to all U.S. Attorneys. The memo directs U.S. Attorney’s offices across the country to charge the most serious crime they can in all circumstances and seek the longest possible sentence. Why?
Before delving into why his policy has nothing to do with the fair and consistent application of the law, a brief discussion of how federal sentencing works is necessary. When a person is being sentenced in federal court, among the things the judge is required to consider pursuant to U.S. Code 18 USC 3553, is sentencing disparity. “Sentencing disparity” is nothing more than a fancy term that means people with similar criminal backgrounds who commit similar crimes should receive similar sentences.
Each year the federal government, and in particular the U.S. Sentencing Commission, publishes voluminous reports on the average sentence for different crimes. Federal probation officers, the people responsible for making sentencing recommendations to federal judges, spend countless hours at training, comparing one case to another case, discussing matters with other probation officers, etc., all in an effort to make sure sentencing is consistent.
Federal sentences are calculated based on two point systems. One system calculates the severity of the crime and takes into account all sorts of factors such as the amount of money involved, the quantity of drugs in question, whether or not weapons were involved, how many people were harmed by a defendants conduct, whether the defendant abused a position of trust and countless other factors depending on the specific crime. The other point system calculates a person’s criminal history. The more extensive a criminal history a person has, the more points. Once the numbers are added up you look at a chart and find where the two point systems intersect and you’ll see a sentencing range in a number of months. This is called a guideline sentence. If a federal judge thinks a sentence in a particular case is too high or too low the court can vary from the guidance.
Sessions knows this dynamic. He knows how federal sentencing works. He knows there is no significant sentencing disparity in U.S. federal courts. All he has to do is read the publically available statistics. This move is really about Sessions’ antiquated view on drugs and how best to combat the drug trade.
How antiquated is Sessions’ thinking? He backed legislation that would have made a second marijuana trafficking conviction punishable by death. Twenty-nine states and the District of Columbia have laws legalizing marijuana in some form. Specifically, there are seven states in which marijuana is legal for recreational use. Another 22 allow for medical marijuana. The attorney general is not only out of touch with modern thinking about how to fight crime, he is also out of touch with a significant number of people in this county.
The Sessions view of crime prevention is rooted in the 1980s view of how to combat the drug trade –lock up low level drug dealers for extremely long periods of time. Got a dime bag of crack? 15 years. Acting as a courier for a gang? 20 years. These policies didn’t lessen the prevalence of drugs on our streets and they didn’t lower gun violence. What these policies did do was lock up countless addicts and low level offenders. These policies have consistently proven to be unfair in their application – they disproportionately affect African Americans and people with limited financial means.
Consider the story of Welden Angelos. He was dealing marijuana and got caught. He faced a sentence of 6-9 years based on the amount of marijuana involved. Then the government added three weapons charges. He never fired the gun. He never threatened anyone with a gun. His 6-9 year sentence sky rocketed to a 55 year sentence. A term from which the judge could not vary, even though the he made clear he thought the sentence was unduly harsh.
Or think about Hamedah Hasan. She had two children and was pregnant with a third when she fled Oregon to escape from her abusive boyfriend. She went to a cousin’s house in Nebraska. Her cousins were drug dealers. Hasan was not a drug dealer. On a few occasions she wired money for her cousins. The house was raided, the drug conspiracy prosecuted. Hasan was in the house during the raid and arrested. Because she wasn’t a drug dealer, she didn’t have enough information to trade with federal prosecutors in order to cut a better deal. She was sentenced to life. That’s right, life in prison. She had no criminal record. The real criminals actually knew about the drug trade, informed on other drug dealers and received lower sentences. Her sentence was ultimately lowered to a mere 27 years.
In fact, the sentencing policies backed by Sessions are so wrong the U.S. Sentencing Commission, the federal agency tasked with carrying out sentencing policy directives from Congress, concluded several years ago that such policies were too harsh on low level offenders. In 2011, the Sentencing Commission published an extensive study, which among other things, called on Congress to eliminate many mandatory minimums and narrowly tailor those that remain so the punishments will, “(1) not be excessively severe, (2) be narrowly tailored to apply only to those offenders who warrant such punishment and, (3) be applied consistently.”
In a rare showing of bipartisanship there was recently a movement in Congress to repel unduly harsh mandatory minimums. The legislation was backed by a broad coalition of both liberals and conservatives. Even Koch Industries backed the legislation, as it would curb government spending on prisons and allow nonviolent offenders to be economically productive.
Sessions new policy memo has put the brakes on the legislation. It appears dead in the water since most republicans, including those who publically backed the bill, don’t appear to want to take on the attorney general and the president on this issue. Someone please call Jeff Sessions. Violent crime in this country is half the rate it was in 1991. Gun violence is down almost 72 percent since 1993. Instead of moving forward with sensible policy reform that would put more people back to work and lessen federal spending, we will instead be adding to the prison population and tearing more families apart.