Jeff Sessions takes wrong turn on crime

Sessions' memo to change sentencing policy
Sessions' memo to change sentencing policy

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Story highlights

  • The attorney general's new prosecution policy is not tough on crime, but dumb on crime, writes Danny Cevallos.
  • Federal prisons are filled with nonviolent drug offenders serving unjustly long sentences, he says

Danny Cevallos is a CNN legal analyst who practices in the areas of personal injury, wrongful conviction and criminal defense in New York, Pennsylvania and the US Virgin Islands at the law firms of Cevallos & Wong in Philadelphia and Edelman and Edelman in New York, where he is of counsel. Follow him on Twitter @CevallosLaw. The opinions expressed in this commentary are his.

(CNN)In a memorandum issued Friday, Attorney General Jeff Sessions outlined his new charging and sentencing policies in federal prosecutions, saying that "prosecutors should charge and pursue the most serious, readily provable offense. .. those that carry the most substantial guidelines sentence, including mandatory minimum sentences."

It's definitely "tough on crime". But is it smart on crime?
Here's the disconnect: "Tough on crime" does not necessarily require "tougher on federal crime". That's the one place we are plenty tough already. Ask any attorney who has defended a federal criminal case, or negotiated a proffer or a plea deal for a client with an assistant US attorney. I'd hardly call the feds "pushovers" when it comes to prosecuting crime. The average federal prison sentence for drug offenders is over a decade. The federal system is not where you go for a slap on the wrist.
The federal government was originally designed to be limited in power and jurisdiction, but you'd never know it today from the United States Code. Almost everything is illegal: As @crimeaday points out, it's a federal crime to sell mayonnaise with saffron in it.
Penalty? Up to three years, if the "criminal" has done it before. It's a federal crime to distribute a matchbook if any match has a crumbled head. Penalty? Apparently up to five years. With pervasive coverage like this, some have posited that we all unwittingly commit three felonies a day.
And the sentencing in the federal system? It's draconian. There are thousands of prisoners sentenced under the oppressive federal sentencing laws from the 1980s. Some are serving life sentences for nonviolent drug offenses. One federal judge has opined that "mandatory minimum sentences in drug cases distort the sentencing process and mandate unjust sentences." Another federal judge has called the drug sentencing enhancements "deeply disturbing," and "stunningly arbitrary."
Just as an example, one offender with no prior drug distribution record sold some of his prescription pain pills ... to an informant. His sentence? Twenty-five years. Okay, he shouldn't have sold drugs. But the disconnect between the severity of the crime, and the absence of violence makes you wonder if this was the criminal our lawmakers envisioned receiving a quarter-century in prison.
Does "tough on crime" mean more bad people in prison for longer periods? Well, mission already accomplished. According to the ACLU, the US with 5% of the world's population has 20% of the world's prison population, which makes us the world's largest jailer. Even if you think 100% of those prisoners deserve to be in prison, you have to concede that economically, incarcerating 1 in 110 people in this country is an expensive government investment.
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This isn't just the position of some wacky, left-wing criminal defense attorneys. Nor is this an argument for some kind of hippie anarchy or post-apocalyptic, anything-goes, Burning Man, Running Man society.
It's about targeting crime that matters, instead of crime that doesn't. Former Attorney General Eric Holder thinks this is a "dumb" on crime approach, and observed that his prosecutors used the discretion he gave them to focus on more serious drug cases. Some folks out there are tougher on crime than Sheriff Joe Arpaio, and think we should lock up bad folks and throw away the key. For those people, consider Holder's economic appeal too. He warns that the DOJ could end up spending one-third of its budget on incarcerating people, rather than preventing, detecting, or investigating crime.
That's why Sessions' plan embodies all the dangers of populism: it features a nebulous promise, like being tough on crime, but doesn't necessarily deploy an effective or efficient strategy.
We already know mass incarceration for low-level offenses — particularly nonviolent drug offenses — is a failed experiment. It's costly too; not just in dollars spent, but in lives wasted.