Trump to Reinstate Drug War-Era Harsh Sentences in Federal Drug Cases

Posted June 7, 2017

MP3 Interview with Marc Mauer, executive director of the Sentencing Project, conducted by Melinda Tuhus

sentencing

News of Donald Trump's recent trip abroad, his decision to pull the U.S. out of the Paris climate agreement and the ongoing investigation into charges that the Trump campaign colluded with Russia to influence the outcome of the U.S. presidential election, has dominated the news for the past two weeks. But during that time, Trump has launched another major shift away from Obama-era policies that has mostly slipped below the radar. That is the announcement by Attorney General Jeff Sessions of a return to a "tough on crime" policy in federal sentencing guidelines and also on the use of private prisons for federal inmates.

Criminal justice reform has been one of the rare areas of bipartisan cooperation in recent years, especially at the state level. There, conservatives and liberals have often been united in an effort to stem the explosive growth in the U.S. prison population that began in the 1980s and is now just beginning to level off and even drop in some cases.

The vast majority of the more than two million people incarcerated in the U.S. are in state prisons and county jails, and won't be affected directly by these changes at the federal level. But the Trump administration is setting a tone that will make it more difficult for politicians to escape the label of "soft on crime" if they oppose Trump’s harsh new measures. Between The Lines’ Melinda Tuhus spoke with Marc Mauer, executive director of the Sentencing Project, who assesses these policy changes and their likely future repercussions.

MARC MAUER: Unfortunately, what we’re seeing is exactly what the Trump administration and Attorney General Sessions had promised us. Within a week of taking office, the attorney general reversed an Obama-era decision on the use of private prisons in the federal system. Last summer, the Department of Justice had announced it was phasing out the use of private prisons at the federal level, basically for two reasons: One, a report by the Office of the Inspector General had found substantial problems of safety and security in the private prisons they were contracting for; and secondly, for a number of reasons, the federal prison populations has declined fairly substantially in recent years, so there was less need for them to rely on the extra beds from private prisons. With very little evidence or rationale, Attorney General Sessions just overturned that order, said they were very committed to using private prisons and that would continue under this administration.

The other main initiative that we see coming out of the Department of Justice so far is that Attorney General Sessions has reversed a policy put in place by Attorney General Eric Holder that recommended that federal prosecutors use their discretion to avoid imposing a mandatory minimum sentence in cases of low-level drug crimes. The mandatory minimums in the federal system impose what are often very harsh 5-, 10-, 20-year minimum sentences and can be imposed even on relatively low-level players in the drug trade, and Holder said, based on much evidence, that this was ineffective. It was overly punitive and wasteful in many ways. Attorney General Sessions has now overturned that and basically has charged his federal prosecutors to seek the highest possible sentence they can prove in every federal case unless there are extreme circumstances that would warrant doing otherwise. So this can only result in increasing numbers of people both going to prison and especially spending more time in prison as a result of this policy initiative. And the attorney general was not able to point in great detail to any problems of the Holder initiative, but rather it was a return to the tough on crime days of the 1980s and 1990s that are now widely discredited across the political spectrum.

BETWEEN THE LINES: We know the crime rate has fallen pretty precipitously in the last two-and-a-half decades or so. But now, over the last year or two, it’s actually gone up. So, Marc Mauer, how do you respond to that critique that blames the Obama administration for that?

MARC MAUER: Well, there are some supporters of Attorney General Sessions who make the argument that the crime rates, particularly homicide, is going up in recent years and this is because of Obama administration policies or similar ones at the state level, and therefore we need to implement these tough penalties. And if you look at these issues in context, there’s not much there to make that argument. First, the crime rates and violent crime as well declined by nearly half since the early 1990s. There are a number of reasons this has happened, but most American communities are considerably safer today than they were 25 years ago. It is true that in a handful of cities – Chicago at the top, certainly – rates of murder have escalated substantially in the last couple of years, and that should be cause for concern. But there are two issues that really get at the federal system: one, the number of people going through the federal system is only about 13 percent of the total in terms of the number of prisoners in the country, so even with some reduction in recent years, there’s no way such a modest proportion of the total could have a substantial impact on any given city; secondly, what we know about crime rates and violent crime is that much of this is driven by local conditions. If there were truly a problem of people coming out of prison committing crime, we should be seeing dramatically rising rates of murder all over the country, and that’s certainly not what we’re seeing. So we do know that local conditions – which may include the presence of gangs; it may involve the type of policing that’s going on; it may involve the availability of illegal weapons, particularly for teenagers. All of these factors can drive short-term spikes in crime in different places. So we need to address those local conditions, but doing a one-size-fits-all federal approach, emphasizing harsh sentences, is not getting at all at those underlying conditions.

BETWEEN THE LINES: There has been bipartisan support at both the state and federal levels for sentencing reform. So what impact do you think these changes will have?

MARC MAUER: The attorney general is really working against the tide of public opinion, the growing consensus that mass incarceration has been very harmful to the country. Nevertheless, I think his policies will do a good deal of damage, at least in the short term, until we can develop more support to go in a different direction.

For more information, visit The Sentencing Project at sentencingproject.org.

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