WASHINGTON ― For years, conservatives like Charles Koch and Newt Gingrich have joined progressives in urging Congress to reform inflexible sentencing laws that mandate lengthy prison terms for particular crimes. Critics say these laws, a relic of the failed war on the drugs, are unnecessary, costly and inhumane.
But Jeff Sessions did not fully get on board with reform when he was a prosecutor or when he was a senator. And now that he’s U.S. Attorney General, Sessions could require federal prosecutors to seek the most serious charge in every case ― which may trigger lengthy mandatory minimum sentences for low-level defendants.
The Obama administration’s Justice Department elected to no longer pursue mandatory minimums for certain low-level drug offenders, and it touted in 2015 that federal drug prosecutors were moving away from seeking minimums “at record rates.” Those changes contributed to a drop in the federal prison population for the first time in decades at a time when the system was facing an overcrowding crisis.
However, Sessions is expected to go in a different direction. He’s tapped Steven Cook, a prosecutor who says the federal criminal justice system is working just fine, for a key role in Sessions’ new Task Force on Crime Reduction and Public Safety, which will re-evaluate the federal government’s response to crime.
As The Washington Post reports, Cook previously headed the National Association of Assistant U.S. Attorneys, a group that opposed Obama administration efforts to implement sentencing reforms. Sessions and Cook could re-emphasize the deployment of the across-the-board sentences Congress established for certain federal crimes, rather than allow prosecutors more discretion in charging decisions.
Mandatory minimums are controversial because they amount to a one-size-fits-all approach to punishment — which exacerbates racial disparities in sentencing. And they don’t allow judges to take individual circumstances into account. A 46-year-old man who allegedly sold $1,800 worth of painkillers to an informant, for example, faced a minimum 25-year prison sentence under Florida law in 2013. A 17-year-old who sold crack was sentenced to life in federal prison until his sentence was commuted by Obama (He now works as a school counselor).
Critics blame these laws for ballooning prison populations and for costs to taxpayers. This includes a growing number of Republicans. Conservative Sens. Mike Lee (R-Utah), Chuck Grassley (R-Iowa), John Cornyn (R-Texas) and Rand Paul (R-Ky.) have all supported legislation that would reform mandatory minimum sentences. The American Legislative Exchange Council, a conservative nonprofit, also has a model policy for states that gives judges discretion to depart from these sentences for certain nonviolent offenders.
“Sessions is grossly out of step with the rest of the party,” said Jessica Jackson Sloan, a human rights attorney who oversees #cut50, a bipartisan initiative to reduce mass incarceration. “It’s very alarming to us to suddenly see that Sessions ... is actually in favor of mandatory minimums and pushing for them so hard,” she added.
The attorney general came up as a federal prosecutor in Alabama during the 1980s, a time when the government was starting to take an aggressive approach to drug sentencing. The federal prison population subsequently ballooned from 24,640 inmates in 1980 to 219,298 by 2013. Sessions has pointed to this experience as influencing his views.
“When mandatory minimums are either eliminated or reduced substantially, it reduces the ability of law officers to negotiate and protect the public,” Sessions said at a Senate hearing in 2015. “I’ve been there, I’ve prosecuted cases.”
The DOJ declined to comment on Sessions’ plans for mandatory minimums, but he is known as a criminal justice hardliner: As Alabama attorney general, he called chain gangs “constitutional and proper.” While he backed legislation that lowered, but did not eliminate, the sentencing gap between crack and powder cocaine (which resulted in severe racial disparities), Sessions has largely opposed broader sentencing reforms.
It’s clear that President Donald Trump and Sessions are on the same page when it comes to pushing tough-on-crime policies. “If any other Republican presidential candidate won, you’d be looking at a different department,” said Kevin Ring, president of of Families Against Mandatory Minimums.
Ring is a former GOP aide on Capitol Hill who was convicted in connection with the Jack Abramoff influence-peddling scandal scandal and was sentenced to 20 months in prison. (Federal prosecutors had asked for much longer). He noted that some reform advocates on the right had been taking a wait-and-see approach to the Trump administration, with several hoping that the president would be “malleable” on criminal justice issues. But that’s beginning to shift, he said.
“I think people are going through the stages of grief,” Ring said. “Everyone has been so excited about playing offense, trying to pass reform at the federal and state level, that the idea that we’re going to spend four years playing defense has made people want to focus more on state work because that’s where you can actually effect some positive change.”
Right on Crime, a conservative criminal justice group, is “definitely not throwing in the towel on federal reform,” said crime policy director Marc Levin. The group and other organizations recently wrote a letter to the Senate Judiciary Committee requesting that U.S. Attorney nominees answer questions about their views on key criminal justice issues, Levin said.
He noted they’ve had some “good discussions with some folks at the White House,” and claimed that criminal justice reform has support from Trump associates including the president’s son-in-law and senior adviser, Jared Kushner. The White House did not respond to a request for comment.
The Huffington Post reached out to several other prominent conservatives who have advocated for criminal justice reform about Sessions’ views. The offices of Sens. Cornyn, Paul and Lee did not respond to a request for comment. Mark Holden, general counsel for Koch Industries, declined to comment. Spokespeople for Gingrich and Grover Norquist — who last month advocated in support of ending mandatory minimums in Nebraska — also did not respond to requests for comment.
Jackson Sloan, the human rights attorney, said it “probably makes more sense for conservatives to work behind the scenes, rather than attacking a leader in their own party’s administration outright.” But at some point, she added, “it becomes obvious that they’re on different sides of the fence.”