Sessions’ serious mistake: Attorney general takes us back to failed, mass incarceration policies

Attorney General Jeff Sessions recently directed all federal prosecutors to pursue charges for the “most serious possible offenses.”

He put it plainly: “By definition, the most serious offenses are those that carry the most substantial guidelines sentence, including mandatory minimum sentences.” If a U.S. attorney deviates from the new policy, supervisory approval must be obtained and the reasons documented.

This is a serious mistake.

Across the country, a bipartisan consensus has emerged that the mass incarceration policies that began some four decades ago have been a costly failure. But Sessions seems bent on pursuing the same harsh, one-size-fits-all sentencing schemes that created an explosion in the prison population and more than quadrupled the nation’s incarceration rate without a corresponding improvement in public safety.

Sessions notes that his policy “fully utilizes the tools Congress has given us.” Yet his directive ignores congressional efforts to refine those tools to ones better suited for the pursuit of justice and the promotion public safety. Criminal justice reform, specifically sentencing reform, is one of the few areas for which there is strong bipartisan support, because members on both sides of the aisle recognize the catastrophic failures of existing laws, which cost U.S. taxpayers billions of dollars each year but fail to make us any safer.

Legislators are already pushing back on Sessions’ retrogressive approach. A bipartisan consortium of U.S. senators and representatives is sponsoring the Justice Safety Valve Act, which would explicitly allow federal judges to depart from mandatory minimums. The Act would allow judges to consider, among other things, the nature and circumstances of a crime, the kinds of sentences available, the potential for disparity, the effect on public safety, and the need to provide restitution to the victim. This simple legislation would restore common sense to the system by allowing judges to ensure the punishment fits the crime.

Sessions’ directive is not only out of step with what members of Congress and the federal judiciary see as the most effective approach to sentencing, but his fundamental premise – that harsher punishment is the most effective response to crime – is belied by mountains of evidence coming from states around the country.

In the last 10 years, no fewer than 33 states have engaged in the justice reinvestment process, which relies on a data-driven, evidence-based approach to crime and punishment. States from Texas to South Carolina have been able to reduce prison spending, redirect funds to diversion and other programs, and realize significant cost savings by prioritizing sentencing reform and reducing incarceration.

Most importantly, these reforms have been accompanied by decreases in the crime rate. For example, following sentencing reform in Texas in 2007, the incarceration rate shrank by 17 percent and the crime rate was down 27 percent. According to a recent report, the 10 states with the largest reductions in incarceration also experienced reduced crime rates on an average of 14 percent.

State legislatures have led the charge on sentencing reform, and these efforts have paid off in shuttered prisons and reduced crime.

Sessions should look and learn from his colleagues in state government. His insistence on returning to the sentencing policies that created mass incarceration in the first place bode ill not just for the people who will be subject to harsh sentences but for all Americans who want to see a fair, effective, efficient criminal justice system.

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Elissa Johnson is a senior staff attorney for the SPLC. Alia Al-Khatib is a law fellow.