Pubdate: Sat, 13 May 2017
Source: Wall Street Journal (US)
Copyright: 2017 Dow Jones & Company, Inc.
Author: Beth Reinhard


In a move expected to swell federal prisons, Attorney General Jeff
Sessions is scuttling an Obama administration policy to avoid charging
nonviolent, less-serious drug offenders with long, mandatory-minimum

Mr. Sessions's new guidelines revive a policy created under President
George W. Bush that tasked federal prosecutors with charging "the most
serious readily provable offense."

It is the latest and most significant step by the new administration
toward dismantling President Barack Obama's criminal justice legacy.
And it defies a trend in state capitals-including several led by
conservative Republicans-toward recalibrating or abandoning the
mandatory-minimum sentences popularized during the "war on drugs" of
the 1980s and 1990s.

The Justice Department memo is likely to draw scorn from those
advocating an overhaul of the criminal justice system, who say those
sentences are a drain on tax dollars that disproportionately damage
minority communities. Federal prosecutors, who often rely on the
threat of harsh sentences to make their cases, are likely to support
the move, arguing the tough penalties are appropriate.

"This policy affirms our responsibility to enforce the law, is moral,
and just and produces consistency," Mr. Sessions wrote in the memo,
which was distributed to federal prosecutors late Thursday. "This
policy fully utilizes the tools Congress has given us."

Mr. Sessions, a former U.S. attorney and state attorney general in
Alabama, also handed prosecutors some wiggle room, saying they may
seek exceptions to charging the "most serious readily provable
offense" if they document the reasons and obtain a supervisor's approval.

"There will be circumstances in which good judgment would lead a
prosecutor to conclude that a strict application of the above charging
policy is not warranted," the memo said.

Mr. Sessions has hinted for months that the new policy was coming and
suggested that lighter sentencing was helping fuel a surge in violent
crime and opioid use. The violent crime rate rose by more than 3% and
the murder rate grew 10% from 2014 to 2015, and preliminary 2016 FBI
data show those rates increased again in 2016.

Critics of the administration's "tough on crime" agenda say the uptick
in violence in the U.S. is largely fueled by a higher murder rate in a
handful of big cities, particularly Chicago. That calls for a more
targeted approach instead of a new nationwide policy, they say. The
violent crime rate, despite recent increases, is about half of its
peak in 1991.

Mr. Obama used his clemency power more than any president since Harry
Truman as part of a broader effort to release nonviolent drug
offenders from prison. He was the first president in decades to leave
with a smaller prison population than when he arrived.

That trend is expected to reverse under President Donald Trump, who
has put law and order at the center of his agenda. In February, Mr.
Sessions revoked an Obama administration directive to gradually reduce
the Justice Department's contracts with for-profit prison operators,
saying the reduction would interfere with meeting the demands of the
prison population.

Detractors of Mr. Obama's policy on mandatory minimums say it was too
soft on drug offenders who could be carrying as much as a kilogram of
heroin, five kilograms of cocaine or 1,000 kilograms of marijuana-all
of which come with a sentences of at least 10 years. Under Mr. Obama,
such offenders could escape that mandatory-minimum sentence if they
didn't use a weapon, supervise other drug dealers, sell drugs to a
minor or belong to a gang.

"Most federal prosecutors and law-enforcement officers who handle
narcotics cases believe that it was misguided and based upon
misinformation about the inherently violent and dangerous nature of
narcotics-trafficking offenses," said Lawrence Leiser, president of
the National Association of Assistant U.S. Attorneys. "The result was
that too frequently drug traffickers were not charged at all, or
received much lighter sentences while avoiding cooperating with the

Senate Democrats Cory Booker of New Jersey, Dick Durbin of Illinois
and Patrick Leahy of Vermont recently urged Mr. Sessions to stick with
the policy established by then-Attorney General Eric Holder, the first
African-American to hold that job. They wrote that changing the policy
"will not increase public safety and will only increase taxpayer
spending on our bloated federal prison populationÂ…Harsh mandatory
minimums do more harm than good in moving our nation toward a justice
system that ensures equal justice under the law."

In the last five years, more than a dozen states have either raised
the threshold for the quantity of drugs needed to trigger
mandatory-minimum sentences, shortened the sentences or eliminated
them altogether, according to Families Against Mandatory Minimums, a
nonprofit group.

Earlier this week, the Republican governor of Iowa, Terry Branstad,
eliminated mandatory minimums for the lowest level of drug felonies
and made about 200 prisoners currently serving long sentences eligible
for parole. Republican governors in Oklahoma and North Dakota have
also eased their mandatory minimum laws in recent weeks.

State policies can have a big impact on the criminal justice system
because only 10% of the prison population is in federal custody.

"The feds set a tone for the country, but I don't think anything
Sessions says is going to change the trend not to rely on mandatory
minimums," said Mike Freeman, president-elect of the National District
Attorneys Association and a district attorney in the county that
includes Milwaukee. "People recognize that mandatory minimums are a
bit harsh and don't allow the flexibility we believe the system needs."
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