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Procedural Fairness

“Dumb on Crime”

There was support from both the right and the left to dismantle the “war on drugs.

Republicans, Democrats, Libertarians, liberals and conservatives, there was support from both the right and the left to dismantle the “war on drugs” and reduce mass incarceration.  For a number of years, citizens have rejected the politicians’ shibboleth of “tough on crime.”  Public opinion polls supported treatment over incarceration, particularly for non-violent crimes.  Prisons were closing, more emphasis was being placed on prisoner re-entry and minimum mandatory sentences, controversial for years, were being seen as unfair, ineffective and too costly. Elimination of mandatory minimums alone led to a 14% decline in total Federal prison population.[i]  Energy Secretary Rick Perry changed Texas’ harsh sentencing laws when he was governor as did other “red states.”

Initiatives like Drug Treatment Courts and other problem-solving courts were being funded by the federal and state governments with increases in levels of funding each year.  Then Jefferson Beauregard Sessions III was appointed Attorney General. Or, as The New York Times’ headline said, “Unity Was Emerging on Sentencing.  Then Came Jeff Sessions.”[ii]

The AG’s confirmation vote (52-47) “came after 30 hours of debate from Democrats and a stunning fight between liberal Sen. Elizabeth Warren and Senate Republicans which ended in her being forced to sit down after she was accused of impugning Sessions.”[iii]

During the hearings Sen. Warren was prevented from reading a 1986 letter from Coretta Scott King opposing Sessions’ confirmation as a Federal judge.  King’s letter said, “I believe his confirmation would have a devastating effect on not only the judicial system in Alabama, but also on the progress we have made toward fulfilling my husband’s dream.”  For that, and other reasons, he did not become a judge some 30 years ago.

There has been much speculation about what this change in Attorneys General might mean for drug policy.  One of the first hints of a modification came soon after his nomination when Sessions said, “Good people don’t smoke marijuana.”[iv]  Given his long-term opposition to legalization of marijuana, this was not surprising.

Previously judges were not hamstrung when sentencing and a more just result was available.

New Policy Announcement

What did catch people off guard, however, was Sessions’ announcement in mid-May ordering deputy attorneys general to “charge and pursue the most serious, readily provable offense” in drug cases, even when that would trigger mandatory minimum sentencing.[v]  By contrast, former Attorney General Eric Holder “instructed prosecutors dealing with drug cases to consider whether the most severe punishment available was fair and proportional” before charging.[vi]  If the minimum mandatory sentence was not sought, this could simply mean that the amount of drug was not included in the indictment.  Therefore, judges were not hamstrung when sentencing and a more just result was available.  Holder never dictated that the minimum should be the standard; rather he just asked charging Deputies to consider sentencing when making a charging decision.  Kevin Sharp is a former federal judge from Tennessee who said he was forced to sentence a low-level drug dealer to life in prison.  “Under no circumstances was this sentence justice.  We ruined his life.”  He has become an advocate for sentencing reform.[vii]

Reactions to Sessions’ announcement has been harsh and swift.  Robert Reich, author of 14 books and Secretary of Labor in the Clinton administration, said Sessions is “dead wrong.”

“1. Mandatory sentencing laws for drug users are a relic of unfair, ineffective, costly, and racist policies – leading to the imprisonment of more Americans and at a higher rate than in any other country.

“2. Sessions said the crackdown was ‘a key part of President Trump’s promise to keep America safe,’ linking drug trafficking to increased homicide rates in some cities. But the rate of overall homicides in America, as well as other serious crimes, is significantly down.

“3. The new policy disproportionately targets minorities because of how different drugs are categorized under the law. Even Republican Sen. Rand Paul said the ‘new policy will accentuate that injustice’.”

“Jeff Sessions is again proving himself to be ignorant and racist.”[viii]

A bipartisan group in Congress has been working on reduction of mandatory minimum sentences led by Kentucky Republican Rand Paul and Democrats Patrick Leahy and Jeff Merkley in the Senate.  They have reintroduced the “Justice Safety Valve Act.”  Companion legislation is being reintroduced by Reps. Bobby Scott (D-VA) and Thomas Massie (R-KY) in the House.

Sen. Leahy said mandatory sentences come “with a human cost, particularly for communities of color, and results in a criminal justice system that is anything but ‘just.’  Our bipartisan approach offers a simple solution:  Let judges judge.”[ix]

A Disproportionate Impact

At the height of the “war on drugs” the United States with 5% of the world’s population had 25% of the world’s prisoners.

At the height of the “war on drugs” the United States with 5% of the world’s population had 25% of the world’s prisoners, 58% of whom were Hispanic and African American.  Mandatory minimum drug policies disproportionately affected neighborhoods of color so that, at one point, 1:6 African American men had been incarcerated.  One of the three black males born today can expect to spend time in prison if trends continue.  Five times as many whites are using drugs as African Americans, yet blacks are sent to prison for drug offenses at 10 times the rate of whites.[x]  Marc Mauer, Executive Director of The Sentencing Project predicts, “[Sessions’ policy] will again fill federal prisons with people convicted of low-level drug offenses serving excessive sentences.”

“Nothing is more unequal than the equal treatment of unequal people,” is a quote most often attributable to Thomas Jefferson.  He may or may not have said it but the sentiment is valid.  Treating everyone equally does not necessarily result in treating everyone fairly.  Individualized justice, that which takes into account the circumstances of the crime and the perpetrator as well as the victim, produces the fairest result, not blindly seeking the most onerous sentence.

Sessions’ new policy “…is an ideologically motivated, cookie-cutter approach that has only been proven to generate unfairly long sentences that are often applied indiscriminately and do little to achieve long-term public safety,”[xi] said former AG Holder.

It is sickening to think of going backwards on drug policy in this country.  Just when everything was pointing to a rational, bi-partisan approach, along comes the Attorney General’s new policy.  As former Attorney General Holder said, “The policy announced today is not tough on crime.  It is dumb on crime.”[xii]



[i] Tanfani, Joseph, et al., “Sessions restores tough drug war policies that trigger mandatory minimum sentences,” Los Angeles Times (May 12, 2017)

[ii] Hulse, Carl, The New York Times (May 14, 2017)

[iii] Killough, Ashley, et al., “Jeff Sessions confirmed to be the next attorney general,” CNN (Feb. 9, 2017).

[iv] Ingraham, Christopher, “Trump’s pick for attorney general: ‘Good people don’t smoke marijuana’,” The Washington Post (Nov. 11, 2016).

[v] Tanfani, supra.

[vi] Nayfakh, Leon, “Jeff Sessions Issues ‘Moral and Just’ Policy Requiring Prosecutors to Seek the Harshest Sentence Possible,” The Slatest (May 12, 2017)

[vii] Tanfani, supra.

[viii] Reich, Robert, Inequality Media (May 13, 2017)

[ix] Gest, Ted, “Congressmen Try Again to Cut Mandatory Minimum Terms,” The Crime Report (May 17. 2017)

[x] NAACP Criminal Justice Fact Sheet http://www.naacp.org/criminal-justice-fact-sheet/

[xi] Lillis, Mike and Lydia Wheeler, “Obama AG rips Sessions as being ‘dumb on crime’,” The Hill (May 12, 2017)

[xii] Id.

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  1. What an interesting article regarding Sessions. Thanks for all the details. The more I learn about Sessions the more frightened I am for our country and all its citizens. Thank you.

  2. The “War on Drugs” was from the inception a very poor metaphor. A civilized democracy does not wage war on its own citizens. Regrettably addiction has afflicted families of every social class. By making access to treatment difficult for some and impossible for others our approach to this problem was doomed. Rather than seek to incarcerate more people for longer periods of time as the current Attorney General advocates we need to make access to treatment easy. We need to rethink what we have done in other areas. Denying access to student loans because of drug convictions for example inhibits rehabilitation. We also need to be honest. Alcohol is legal but in most states marijuana is not. Federal deference to those states who have made policy decisions that Washington does not agree with is only going to deflect resources from far more dangerous substances

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