Pubdate: Mon, 15 May 2017
Source: Wall Street Journal (US)
Copyright: 2017 Dow Jones & Company, Inc.
Author: Beth Reinhard


When Attorney General Jeff Sessions last week jettisoned an Obama
administration policy that had been aimed at sparing less-serious drug
offenders from harsh sentences, he called his new, more aggressive
approach "moral and just."

But the verdict among law-enforcement and legal professionals is more
mixed. Government data, along with interviews with former U.S.
attorneys who advised the Justice Department under President Barack
Obama, suggest the previous policy achieved several, though not all,
of its goals.

Then-Attorney General Eric Holder announced the policy that was to be
embodied in what became known as the "Holder memo" in a 2013 speech to
the American Bar Association. Mr. Holder pledged that federal
prosecutors would focus on more dangerous drug traffickers and avoid
charging less-serious offenders with crimes that required long,
mandatory-minimum sentences. Mandatory-minimum sentences, he said, had
led to bloated, costly prisons and disproportionately ravaged minority

While there was some blowback to Mr. Holder's announcement among
prosecutors, the policy was largely heeded. Federal drug cases dropped
by more than 19% between 2012 and 2016, according to the U.S.
Sentencing Commission. Cases with charges carrying longer,
mandatory-minimum sentences fell precipitously, from nearly 60% in
2012 to roughly 45% last year.

Prosecutions of more-serious crimes involving weapons or cartel
leaders, meanwhile, increased by 17% and 14%, respectively, over the
same period.

"The Justice Department's own data revealed just last year that, since
I implemented 'smart on crime' policies in 2013, prosecutors have used
the discretion I gave them to focus on more serious drug cases," Mr.
Holder said in a statement last week rebuking Mr. Sessions for
abandoning the policy.

The new guidelines would require federal prosecutors to charge "the
most serious readily provable offense," which means they would seek to
build a case carrying the harshest penalties.

John Walsh, a former U.S. Attorney in Colorado who served as the
chairman of an advisory committee to the attorney general's office,
said Mr. Holder's policy allowed prosecutors to consider the
circumstances of each case and pursue the most appropriate punishment.
"Instead of tying the hands of prosecutors, it gave us greater
discretion," he said.

Joyce Vance, a former U.S. Attorney in Alabama who also served on the
advisory committee, said, "I was a prosecutor back when the best thing
you could do was lock em' up and throw away the key…We had a more
thoughtful approach to law enforcement in which the metric was not
whether we were indicting more people than last year."

However, government statistics show one concern raised by Mr. Holder's
critics was well-founded: a decline in the share of federal
convictions involving drug defendants providing information on other

Cases involving "substantial assistance" from informants dropped from
23% in 2012 to slightly less than 22% last year. The figure was 25% in
2008, before Mr. Obama was elected.

The decline in "substantial assistance" from defendants troubles some
federal prosecutors, who say the threat of harsh sentences helps turn
drug offenders against kingpins and cartel leaders.

"Mandatory-minimum sentences provide the incentive to acquire
cooperation from the most significant drug traffickers," said Lawrence
Leiser, a federal prosecutor in Virginia and the president of the
National Association of Assistant U.S. Attorneys. "Any reduction in
that cooperation is a lessening in of our ability to protect the
public from the scourge of drug trafficking."

Mr. Sessions says the old guidelines failed to achieve another
important goal: improving public safety. The violent crime rate rose
by more than 3% and the murder rate grew 10% from 2014 to 2015.
Preliminary FBI data show those rates increased again in 2016.

"We intend to reverse this trend," Mr. Sessions said Friday in New
York. "We are returning to the enforcement of the laws as passed by
Congress, plain and simple. If you are a drug trafficker, we will not
look the other way."

William Otis, a former U.S. Attorney in Virginia who served as special
counsel to former President George W. Bush, agreed that the old policy
let too many drug dealers off the hook. This has led, partly, to the
recent surge in crime, he said.

"If crime and heroin deaths are rising, nobody would consider that a
success," he added.

Mr. Sessions's critics point out that the increased murder rate over
the last two years is largely fueled by a few big cities. Nationwide,
overall crime rates still hover near multidecade lows.

"With all due respect to the attorney general, I think the discussion
would be in a better place if we were operating from the same set of
facts on violent crime," said Barry Grissom, who served as the U.S.
Attorney in Kansas under Mr. Obama and on the advisory committee to
the attorney general. "With the exception of a few places like
Chicago, crime is at a 30-year low. It seems like Mr. Sessions is
approaching this as if he was still a U.S. attorney in Alabama and it
was the beginning of the war on drugs."
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