Sessions Scales Back Lenient Obama-era Criminal Drug Charging Policy

The policy change does not affect "peaceful drug offenders," it affects violent drug offenders.

By Rachel Alexander Published on May 15, 2017

Attorney General Jeff Sessions rolled back the Obama administration’s lenient sentencing policies Thursday. It is a “key part of President Trump’s promise to keep America safe,” he said. He cited a spike in violence in big cities in issuing the 2-page directive to the 94 U.S. attorneys’ offices.

Is this new policy needed? Critics argued that it penalizes minor drug offenders and sends more people to already over-crowded prisons. Yet the real story is that it punishes violent drug offenders for all their crimes. The new policy is intended to make sure they serve a sentence reflecting the seriousness of the threat they pose.

The memo instructs prosecutors to pursue “the most serious, readily provable offense.” It leaves room for some exceptions. Sessions also tells prosecutors to inform the court of all factors affecting sentencing. The change returns the policy to the one in place during the Bush administration era. “This policy affirms our responsibility to enforce the law, is moral and just, and produces consistency,” Sessions wrote.

Leniency Under Holder

In 2010, then-Attorney General Holder told prosecutors they didn’t need to seek the most serious viable charges in every case. Three years later, he put in place a “Smart on Crime” policy that limited the use of mandatory minimums for certain types of drug crimes. He encouraged prosecutors to use their own discretion. He believed this would reduce costs and inequities in the justice system.

Holder claimed the policy applied to “nonviolent, low-level drug offenders.”DOJ officials call this a “false narrative.” Real “peaceful drug offenders” rarely serve time. The Obama/Holder policy really applied to drug offenders in prison for other crimes, usually violent ones.

“Peaceful drug offenders” rarely serve any time.

This was apparent when the Obama administration commuted the sentences of over 1,000 felons for “drug crimes.” His list of of felons failed to include any criminal history other than drug and firearm-related crimes. In reality, many of the felons were sentenced as repeat offenders, not for the actual drug crime. A quick internet search of the felons’ names revealed this. Sessions observed in his memo that drugs and violence go hand in hand.

Sonja B. Starr, a University of Michigan law professor who specializes in criminal sentencing, admits mandatory minimums are mostly toothless. No matter what the DOJ’s policy is, she says, prosecutors have a lot of discretion.

However, the lenient policy resulted in a decline in the federal prison population for the first time since the 1970s. Although mandatory minimums can be subverted by prosecutors, the decline in the federal prison population under Obama is evidence they have some teeth.

Violent Drug Offenders Go Back to Jail

The types of violent drug offenders this policy affects have a 77 percent recidivism rate. In the federal system, 81,847, or 46.3 percent of inmates are supposedly locked up for “drug crimes.” Since the reality is they’re not peaceful drug dealers, that is a large percentage of criminals to start letting off the hook.

There is no “War on Drugs” in the criminal justice system.

Of course, there is some prosecutorial abuse of criminal laws, many which are vague and overly broad. These laws are all too often used to target people for political reasons. Former members of Congress like Tom DeLay, Ted Stevens and Rick Renzi were wrongly prosecuted. But just because this abuse happens does not mean violent drug dealers should be let off the hook. It is not the same thing.

Critics contend the policy change revives the “failed War on Drugs.” But there is no War on Drugs in the criminal justice system. In fact, the laws continue to become more lenient. Marijuana is being legalized around the country.

The policy change merely puts back in place punishments for drug-related violence. Peaceful drug dealers will continue to avoid incarceration.


Follow Rachel on Twitter at Rach_IC

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