Reform Rollback
On May 12, 2017, Attorney General Jeffrey Beauregard Sessions announced he was rolling back the Obama Administration’s drug offense sentencing guidelines promulgated under former Attorney General Eric Holder. Attorney General Sessions stated in his memo to the Department of Justice that, “prosecutors should charge and pursue the most serious, readily provable offense”, and that, “The most serious offenses are those that carry the most substantial guidelines sentence, including mandatory minimum sentences”.[1] This is a backwards and antiquated policy that stops the progress of treating minor drug offenses as a public health issue rather than a criminal one. This move is bad for Americans, as it revisits the failed “tough on crime” policies enacted in the failed War on Drugs.
Attorney General Sessions’ memo and statement announced this administration’s bringing back mandatory minimum sentences, which caused the federal prison population to balloon over minor drug offenses. Sentences range from decades to life, with two prior convictions automatically triggering a mandatory life sentence without parole. At the height of the drug war, the Justice Department spent one third of its budget incarcerating people,[2] diverting funds that could be better used to focus on victim services, state and local law enforcement, staffing, investigation, and prosecution. Even for those who receive fairly minor sentences, the consequences can last a lifetime. In addition to the difficulties in finding work, one out of three African American males cannot vote, due in large part to the War on Drugs.[3] This policy was and is wasteful, and harmful to our democracy.
In 2013, then-Attorney General Eric Holder announced a new policy under which federal prosecutors would only seek the mandatory minimum sentences for drug offenses in the most egregious of cases. He instructed federal prosecutors to decline to state the amounts of drugs involved in the crime, thereby sidestepping the mandatory minimums that tie federal judges’ hands. Sadly, this policy has now been overridden.
Eric Holder called the new policy unwise and ill-informed in the statement he issued on May 12, 2017. He went on to say about federal prosecutors that, “The Justice Department’s own data revealed just last year that… while they brought fewer indictments carrying a mandatory minimum sentence, the prosecutions of high level drug defendants had risen and that cooperation and plea rates remained effectively the same.”[4] In effect, the changes were only beneficial.
Attorney General Sessions’ rollback has generated bipartisan criticism. Sen. Rand Paul (R-KY) stated in a CNN op-ed that, “Mandatory minimum sentencing has done little to address the very real problem of drug abuse while also doing great damage by destroying so many lives, and most Americans now realize it.” Sen. Paul is in favor of treating drug addiction as a health crisis and less as an incarceration problem.[5]
Justice Safety Valve Act
All is not lost. A new bill is currently before the Senate that seeks to prevent this erosion of justice. Reintroduced from a previous Congress by Sens. Patrick Leahy (D- Vt.), Rand Paul (R-Ky.), and Jeff Merkley (D-Ore.), the legislation gives federal judges the judicial discretion to issue sentences below the mandatory minimums.
To amend title 18, United States Code, to prevent unjust and irrational criminal punishments.
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the “Justice Safety Valve Act of 2017”.
SEC. 2. AUTHORITY TO IMPOSE A SENTENCE BELOW A STATUTORY MINIMUM.
Section 3553 of title 18, United States Code, is amended by adding at the end the following:
“(g) Authority To Impose A Sentence Below A Statutory Minimum To Prevent An Unjust Sentence.—
“(1) GENERAL RULE.—Notwithstanding any provision of law other than this subsection, the court may impose a sentence below a statutory minimum if the court finds that it is necessary to do so in order to avoid violating the requirements of subsection (a).
“(2) COURT TO GIVE PARTIES NOTICE.—Before imposing a sentence under paragraph (1), the court shall give the parties reasonable notice of the court’s intent to do so and an opportunity to respond.
“(3) STATEMENT IN WRITING OF FACTORS.—The court shall state, in the written statement of reasons, the factors under subsection (a) that require imposition of a sentence below the statutory minimum.
“(4) APPEAL RIGHTS NOT LIMITED.—This subsection does not limit any right to appeal that would otherwise exist in its absence.”.[6]
A companion bill has been introduced in the House by co-sponsor Reps. Thomas Massie (R-Ky.) and Bobby Scott (D-Va.). The bill would effectively neuter the new Sessions department policy. Sen. Leahy (D-VT) has stated that, “This is not a Republican or Democrat idea, this is a common-sense idea.”[7] However, it is unclear what fate the bill would have were it to end up on President Trump’s desk. Bill Piper, Senior Director of the Drug Policy Alliance, states that there could be an opening for the President to sign the bill, theorizing that there is potentially a disconnect in policy between the White House and the Justice Department, as Jared Kushner is in charge of the White House’s task force for criminal justice reform.[8]
There is a bipartisan consensus that the mass incarceration of individuals for drug offenses cannot and should not continue. The Justice Safety Valve Act is an important first step forward from the many steps backward the current Justice Department leadership has undertaken. It is the common-sense approach, the humane approach, and it makes one wonder what exactly is guiding the Trump Administration’s policy.
[1] Jarrett, Laura and Scott, Eugene. “AG Sessions Paves Way for Stricter Sentencing in Criminal Cases.” CNN.com. http://www.cnn.com/2017/05/12/politics/sessions-criminal-charging-memo/index.html (accessed June 5, 2017).
[2] Jarrett, Laura and Scott, Eugene. “AG Sessions Paves Way for Stricter Sentencing in Criminal Cases.” CNN.com. http://www.cnn.com/2017/05/12/politics/sessions-criminal-charging-memo/index.html (accessed June 5, 2017).
[3] Paul, Rand. “Rand Paul: Sessions’ Sentencing Plan Would Ruin Lives.” CNN.com. http://www.cnn.com/2017/05/15/opinions/sessions-is-wrong-rand-paul-opinion/index.html (accessed June 5, 2017).
[4] Id.
[5] Paul, Rand. “Rand Paul: Sessions’ Sentencing Plan Would Ruin Lives.” CNN.com. http://www.cnn.com/2017/05/15/opinions/sessions-is-wrong-rand-paul-opinion/index.html (accessed June 5, 2017).
[6] “S.1127 – Justice Safety Valve Act of 2017.” Congress.gov. https://www.congress.gov/bill/115th-congress/senate-bill/1127/text (accessed June 5, 2017).
[7] Ganeva, Tana. “Senate Moves Forward with Bill to Rein in Jeff Sessions.” http://www.rollingstone.com/politics/news/senate-moves-forward-with-bill-to-rein-in-jeff-sessions-w482927 (accessed June 5, 2017).
[8] Id.