We are convinced these new guidelines will make our communities less safe and attempt to revitalize our failed “War on Drugs” with its disparate impact on persons of color, especially African American males.
FOR those of us who care deeply about public safety and the fair application of our criminal laws, these are challenging times. President Donald Trump lurches from crisis to crisis and sucks us into the latest media frenzy along with him.
Unfortunately, our attention can be diverted from important actions taken by Trump’s lieutenants, in this case Attorney General Jeff Sessions who, on May 10, ordered federal prosecutors across the country to make an about face on federal sentencing — requiring them to “charge and pursue the most serious, readily provable offense,” even in low level nonviolent cases.
As former United States attorneys appointed by Republican presidents, we believe the attorney general’s guidelines are a giant step backward.
Recognizing an emerging bipartisan movement to examine and revise federal sentencing guidelines, former Attorney General Eric Holder had directed federal prosecutors to “carefully consider whether an exception may be justified.” This allowed prosecutors and judges the opportunity to avoid harsh sentences mandated by myriad factors that might result in unjust sentences.
Between the two of us, we have supervised the prosecution of federal cases for more than a decade. In our judgment, Sessions’ directive to federal prosecutors is wrongheaded. It will take us back to old practices and patterns that have been seriously discredited. The order guarantees an expansion of our prison population and ignores the gains sought from the regulation and taxation of marijuana, the promise of treatment alternatives and the demonstrated successes of drug courts and other alternatives to the full weight of criminal prosecution and incarceration.
These considerations in part explain why President Barack Obama addressed the unfair application of harsh federal sentences by releasing hundreds of federal prison inmates, many them serving life sentences for nonviolent offenses.
We fear that a strict application of the new guidelines returns the federal government to failed drug policies, including many marijuana prosecutions. Under the guidelines, federal prosecutors will be required to seek enhancements for possession of marijuana (legal under Washington state law), including sentencing enhancements on a third-time offense. If taken literally, federal prosecutors would have to consider seeking a life sentence for a third conviction for marijuana possession — an outrageous outcome particularly in light of changing attitudes on cannabis reflected in state legalization movements.
Attorney General Sessions seems unaware of the progress being made in seeking productive alternatives to long prison terms and clearly intends to reverse what most of us see as a promising trend toward treatment over incarceration for many offenders. And the attorney general’s new plan will be expensive. It costs tens of thousands of dollars to house one person in a federal prison each year. As research has more recently shown mass incarceration does not result in a proportional reduction in crime, this new directive fails a basic cost-versus-benefit analysis.
As former U.S. attorneys, we are convinced these guidelines will make our communities less safe and attempt to revitalize our failed “War on Drugs” with its disparate impact on persons of color, especially African American males. Prosecutors across the country are joining with conservatives as diverse as Sen. Rand Paul, R- Kentucky, and Republican campaign financiers Charles and David Koch in condemning the new guidelines.
Local prosecutors, including King County Prosecuting Attorney Dan Satterberg, share this view. Satterberg, like others who are critical of inflexible and harsh sentences, decries our country’s excessive prison population and has made his office a national leader in seeking alternatives to the failed war on drugs. They know that our incarceration rate of African American males based on low-level drug crimes has contributed to mass imprisonment. As Michelle Alexander writes in her book, “The New Jim Crow,” “No other country in the world imprisons so many of its racial or ethnic minorities. The United States imprisons a larger percentage of its black population than South Africa did at the height of apartheid.”
Turning the clock back to the 1980s will not make our communities safer. Federal prosecutors and judges must have the flexibility to assess the facts of individual cases in order to avoid a mechanical application of harsh sentences — particularly in low-level nonviolent crime. It will require courage to take careful and appropriate exception to the Sessions’ guidelines, and we urge our former colleagues to do just that. Our concept of justice is an evolving one, particularly in the fair treatment of all who are accused of committing crimes.
Let’s not go back to discredited and unthinking policies that do little more than fill our prisons, increase our tax burden and impose intolerable societal costs.