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Reversing Progress, Sessions Order Embraces 'Vicious Cycle of Incarceration'

In sweeping memo, Attorney General tells prosecutors to pursue the most harsh charges available for low-level offenders

Protest outside the Department of Justice. (Photo: Mike Maguire/cc/flickr)

Protest outside the Department of Justice. (Photo: Mike Maguire/cc/flickr)

In a bid to revive the failed War on Drugs, Attorney General Jeff Sessions issued a sweeping memorandum on Friday directing prosecutors to pursue the most harsh charges available for low-level offenders, reinstating a discredited practice that rights groups warn has already "devastated the lives and rights of millions of Americans."

The two-page document (pdf) distributed to federal prosecutors nationwide lays out charging and sentencing policy for the Trump administration.

"It is a core principle," it states, "that prosecutors should charges and pursue the most serious, readily provable offense...By definition, the most serious offenses are those that carry the most substantial guidelines sentence, including mandatory minimum sentences."

Though anticipated, the move drew swift condemnation from civil rights and legal groups that said it would "perpetuate racial disparities in the criminal justice system," lead to dangerously overcrowded prisons, and place even more non-violent people in the "vicious cycle of incarceration."

The Lawyers' Committee for Civil Rights Under Law minced no words when it declared the War on Drugs "a failure."

"Mandatory minimum sentences for low-level, nonviolent drug offenses perpetuate racial disparities in the criminal justice system and damage law enforcement relationships with the minority community," the legal group said. "Attorney General Jeff Sessions must not turn the clock back by resorting to outdated and discriminatory tough-on-crime tactics."

Similarly, Udi Ofer, director of the American Civil Liberties Union's Campaign for Smart Justice, said that Sessions "is pushing federal prosecutors to reverse progress and repeat a failed experiment—the War on Drugs—that has devastated the lives and rights of millions of Americans, ripping apart families and communities, and setting millions, particularly Black people and other people of color, on a vicious cycle of incarceration."


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"With overall crime rates at historic lows, it is clear that this type of one-dimensional criminal justice system that directs prosecutors to give unnecessarily long and unfairly harsh sentences to people whose behavior does not call for it did not work," Ofer continued, noting that these types of policies "failed for 40 years, and from the halls of state legislatures to the ballot box, the American people have said with a clear voice that they want commonsense reforms to sentencing policy, and not a return to the draconian policies that have already cost us too much."

Sessions' approach rolls back the Obama administration's efforts reform overbearing sentencing rules and reduce the U.S. prison population. It overrides two memos issued by former Attorney General Eric Holder that were part of an overall "Smart on Crime" initiative which helped reduce the prison population by almost 14 percent.

A 2010 memo (pdf) gave federal prosecutors more discretion in handing down charges, asking attorneys to consider "the merits of each case, taking into account an individualized assessment of the defendant's conduct and criminal history and the circumstances relating to the commission of the offense (including the impact of the crime on victims), the needs of the communities we serve, and federal resources and priorities." The second, a 2013 memo, instructed prosecutors to reserve the "most severe mandatory minimum penalties...for serious, high-level, or violent drug traffickers."

"Attorney General Sessions seems to have missed the memo that the War on Drugs is over," said Wade Henderson, president and CEO of The Leadership Conference on Civil and Human Rights. "It has destroyed low-income communities and communities of color and has failed to make our country safer. Abandoning the Smart on Crime initiative will only perpetuate mass incarceration of poor, Black, and Brown people, the explosion of federal spending on prisons, and the mushrooming of our federal prison population."

However, as the civil rights organization Advancement Project observed, perhaps this is the objective of the Trump administration.

"It is abundantly clear," Henderson continued, "that this Justice Department is out of touch with reality. America's drug problem is a public health crisis, not a criminal one. The federal government should be following the lead of states that have recognized that mandatory minimum sentences will not keep us safe and begun exploring alternatives to incarceration. It is incumbent upon policymakers across the political spectrum who claim to support reform to decry this plan and work to pass bi-partisan legislation."

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