How Much Harm Will AG Sessions’ Lock ‘Em Up Memo Do To Sentencing Reform?

Celeste Fremon
Written by Celeste Fremon

Sessions Wants More People in Prison

On Friday, May 12, US Attorney General Jeff Sessions issued a directive that told prosecutors to push for the most severe charges available when it comes to drug cases. The directive (dated May 10) got somewhat lost in the flood of other national news in the past week. But now justice reform advocates and others are taking a more careful look in order to figure out what kind of affect on sentencing and incarceration reform Session’s new dictum might have.

(You can find Sessions’ sentencing memo here.)

Some officials in the state of New Mexico seem to be particularly worried about how Sessions’ new order will affect, well, drug mules. For instance, in regional but excellent story for the Sante Fe Reporter, Aaron Cantú wrote about the state’s unusually high number of “drug mule” cases that usually involve nonviolent, low level drug offenders, which it seems “were among those singled out in a memo issued by former attorney general Eric Holder in August 2013.”

According to federal public defender, John Butcher, after Holder’s memo, drug mule cases involving low-level minimum participants with minor records, still involved prison terms, but nobody “threw the book at them” anymore, Butcher said.

Holder’s directive encouraged prosecutors not to charge such low level people with crimes that could trigger stiff mandatory minimum sentences, which in turn required judges to send defendants to prison for a certain number predetermined number of years, regardless of mitigating factors.

Now, with the new pressure on prosecutors by Sessions to go for the highest charges, judges may be forced to sentence those same low-level offenders holding five milligrams of cocaine to a minimum of 10 years in prison for a first offense, according to Butcher.

Right on Crime Thinks Sessions is Wrong

Marc A. Levin, the policy director for the conservative criminal justice reform group, Right on Crime, which has been a potent force in bi-partisan efforts to reduce incarceration rates, and to reform overly aggressive sentencing schemes, doesn’t think the Sessions memo will do as much damage as some people fear. He feels that, with 30 states as least enacting some kind of significant reform, the momentum, even in traditionally law-and-order states— like Louisiana, Georgia, Texas and South Carolina—is too great.

“There was a lot of speculation that with the rhetoric from the presidential campaign, there would be a drop in momentum, but we haven’t seen that,” Levin told New York Times reporter, Richard A. Oppel Jr. this week. “There have been so many successes in the last several years, particularly in conservative states, that it continues to fuel other states to act.”

Unsurprisingly, many other justice reform advocacy groups made strong statements against Sessions’ move. The ACLU, for one, came out swinging.

“Jeff 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…particularly Black people and other people of color, on a vicious cycle of incarceration,” said Udi Ofer, director of the ACLU’s Campaign for Smart Justice.

“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. It failed for 40 years,” Ofer said. And the American people have indicated they don’t want “a return to the draconian policies that have already cost us too much.”

What About California?

California Senator Kamala Harris, who said she worked in the Alameda County district attorney’s office at the height of the crack epidemic, brought up the issue early this week at the Center for American Progress’ Ideas Conference in Washington, D.C., where she was a popular featured speaker.

“I saw the War on Drugs up close,” she said, “and, let me tell you, [it] was an abject failure. It offered taxpayers a bad return on investment. It was bad for public safety. It was bad for budgets and our economy. And it was bad for people of color and those struggling to make ends meet.”

Xavier Becerra, the state’s attorney general, said he was “disappointed and disturbed” by the new federal sentencing guidelines laid out by Sessions, “that instruct prosecutors to seek the harshest possible punishments for drug offenders.” Those guidelines, he pointed out, stand juxtaposed to bipartisan efforts on Capitol Hill to overhaul the criminal justice system, a program backed by big donors including liberal George Soros and the conservative-libertarian Charles and David Koch.

The AG mentioned that the guidelines are “especially troubling in California,” one of eight states where voters have legalized marijuana for recreational use.

“This is the 21st century. We should not be talking about criminalizing marijuana. We should be talking about regulating marijuana,” Becerra said. “I think it’s just a shame that we would think the best way to address serious violent crime would be to start going after folks for small quantities of marijuana.”

The Legislature Fights Back

California lawmakers quietly made their own indirect statement this week when the state’s Senate approved SB 180, which is nicknamed the Repeal Ineffective Sentencing (RISE) Act.

The bill, sponsored by democratic Sens. Holly Mitchell and Ricardo Lara, eliminates a particular drug-related sentencing enhancement that has been enshrined in California law.

The enhancement is as follows: when someone is arrested for a drug sale, or possession for sale, if that someone has a previous felony convictions on similar charges, their sentences can be doubled or even tripled.

Prop 57 addressed such enhancements for those spending time in prison.

SB 180 would eliminate the automatic enhancements for those serving their sentences in the state’s jails, except if the defendant is charged with getting kids into the trade.

Even though the RISE Act has been in the works for some time, during floor discussion, supporters of SB 180 reportedly mentioned Sessions’ recent call for tougher drug sentencing on the federal level as a serious concern.

So Does the U.S. Congress

Meanwhile, in the U.S. Senate, a bipartisan group of lawmakers directly pushed back against Sessions’ memo by introducing legislation to give federal judges more discretion to impose lower sentences, reports the Washington Post.

“Mandatory minimum sentences disproportionately affect minorities and low-income communities, while doing little to keep us safe and turning mistakes into tragedies,” Sen. Rand Paul (R-Ky.) who co-sponsored the bill said. “As this legislation demonstrates, Congress can come together in a bipartisan fashion to change these laws.”

Leahy and Paul introduced the Justice Safety Valve Act with Sen. Jeff Merkley (D-Ore.). Rep. Thomas Massie (R-Ky.) and Rep. Robert C. “Bobby” Scott (D-Va.) are introducing a companion bill in the House.


  • That’s great news. I would advise all Investigators to attempt a Federal filing on drug cases. Screw these peddlers of poison.

  • It’s amazing that we have come to a point where so many “supposedly” law and order politicians at the state level will rationalize, theorize, make excuses and object to any changes that affect how criminals are treated and punished. They are clearly “anarchist” leaning , ” kaos mongering”, pandering hacks who could care less about rule of law and the protection of victims rights. These folks clearly think they now what’s best and it’s “their way or no way”, irregardless of what a higher authority such as the Federal Government may think. There will have to be some federal prosecutions of local officials for not enforcing and impeding a Fedral law to make the point that no one person or state is above the law. The DOJ and O’Bama administration did just that to law enforcement agencies around the country by applying Federal laws, court rulings and such, so it is not without precedent.

  • Conspiracy, do not forget to tell people that the sky is falling, and people are raping and looting. Crime is at a 40 year low, but your ilk claims its total chaos. That statistics class at Trump University did not serve you well. I’m sure you long for the good ‘ol days with the good ‘ol boys. No doubt you’re cursing the removal of General Lee’s statute in New Oreleans. Damn, those blacks. They are too sensitive. But, alas, the South shall rise again and stop them liberals from the North. Or is the West?

    Nevertheless, I agree with you. I think there should be some federal prosecutions, and I hope they start with Agent Orange, our great commander in chief, the closet thing to redneck royalty we have in the republic. Its redneck amateur hour in the White House and Elmer Fudd is attorney general trying to hunt black and brown wabbits. Be honest, are you rooting for General Jefferson Beauregard Session? Funny how his ma and pa named me after two giants of the Confederacy, but at best he is a midget of a man, literally and figuratively.

    And, how dare this black man O’bama apply federal law to police departments, forcing them to follow the law. So, you cry for the rule of law when it applies to the black kid in the street, but not the redneck in the black and white. I’m sure you are one of those who fancy himself a “hero.” Thank you for your service and go back to your bunker.

  • CF…

    WOW! Did I say all that? I surprised myself even. What an ignorant tirade by a simple minded child. Go back to Berkeley, the home of carefully controlled, selective “Free Speech” and spout that crap.

  • It’s amazing the Left and its proponents still crow that crime is at a “40 year low,” like CF did above, in response to those who are concerned about increasing crime today, but they never indicate what caused that “low.” Coincidentally, the reinstatement of the death penalty in California (though sparsely used), proactive policing, and three-strikes laws were instituted around that same time. Yet, the Left, et al. never mention that because of those policies, crime subsided from its rampant march through the 1960’s and 1970’s. Now the Left is undoing these policies and letting serious criminals go from prison early (see AB 109, Proposition 36, Proposition 47, etc.), and crime–violent crime especially–is spiking. The Left is now claiming the successful results of the policies they opposed in the first place. Cognitive dissonance much?

  • AG Sessions has instructed his federal prosecutors to maximize the potential penalties and punishments for defendants in drug-related cases.

    If Sessions can increase the risks involved in illicit drug trafficking,
    he can increase the potential rewards for those who avoid capture.

    The anticipated results may include an increase in the intensity and propensity to utilize violence while conducting drug operations, and an increase in the payments(bribery) offered to enforcement agents for participating in corruption.

    Sessions new policy directive can play a pivotal role in changing the milieu of illicit drug operations, possibly incubating an ideal host for Mexico style drug war tactics to jump the border and take root in in in the U.S.

  • That’s a lot of speculation and what if scenarios. Stricter sentencing could also serve to deter potential drug traffickers due to the stiff penalties they can incur and put away the more egregious drug traffickers. Penalties and punishment can be an effective deference, and have been used by all societies to maintain order and keep a civil society. What has changed to make everyone think we have moved past this?

  • CF only wants to see White people in jail, preferably White cops but if none of them are around any White redneck will do. None of those to be found, White women, kids, the elderly or sick as long as their White CF is happy to see them locked up.

  • @Charlie- There is a general consensus among folks that study these issues (yes, mainly in academia) that there are a number of factors, and that we cannot point to any one factor. Some, for example Levitt at the U of Chicago makes an argument that legalization of abortion is responsible for the most significant reduction. Others, claim the Clean Air Act with the elimination of leaded gasoline. Others, claim the aging population and the decrease of drug and alcohol use. Others, like Berkeley professor Zimring believes the police played a big role, especially with Compstat. At best, most would place increased sentences at between 0-10% of the reduction. Stop playing amateur social scientist and trying to cloth your racist tendencies with the garb of law and order.

    Sure Fire, I do not want to see white people go to jail. Unfortunately, I think there are already too many people in jail, black, brown and poor whites. I believe that you commit a crime, you pay the price. Unfortunately, the price is higher for black and brown people for the same crime, and I think its the height of folly to put people away for years for the use or sale of drugs. We tried it with alcohol and it did not work. We realized the same with marijuana. Its legal and the world has not come to end as you predicted. I think such laws give people like yourself the excuse to screw black people while being able to say its the law and not your racism. The fact that you use Negro instead of Nigger, does not make you enlightened.

  • The problem with academics who study crime and trends is the tendency to either cherry pick data or formulate studies that will allow you to reach your desired conclusion. This is form if white collar form of bias. How can anyone ignore the rise in crime in places such as Baltimore and Chicago due to the so-called “Ferguson Effect.” How can anyone say the Opiod epidemic in the East is best handled by letting folks overdose and providing emergency resposnders with Epi pens. This is what you call truly working backward. Try telling someone in these areas everything is rose and crime is at a “40 year” low.

    The problem with law enforcement is they are trying to perform a necessary, non-glamorous, down in the trenches job using an 18th century model 21st century academics and politicians don’t like. People trivialize the job of the police who develop a great deal of professional knowledge, practical experience and perspective on human behavior by actually dealing with the test groups the academics merely study or gather statistics about.

  • Abortion? Clean Air? Aging population? Your obfuscation of this topic with unrelated issues is petty and childish, as is your logical fallacy of appealing to authority (“consensus among folks”) without specifically mentioning who those “folks” are. And I believe the term is “projection” when you claim “racism” where none was indicated or mentioned, especially when you do not define what you think the term “racism” means to you in this case. It is as if you were looking for a bogeyman in a discussion where none exists. It must be horrible living a life ruled by emotion and uncontaminated by facts or logic. Best of luck to you.

  • Speaking of Baltimore, how they doing educating the children there? Now you want to talk about a real tragedy, there you go. Wonder what part crime in the city plays in that?

  • Hey cf ,you may want to lay off huffing the leaded gas, guess it’s too late to warn you about eating the paint. On the bright side, I hear now-a -days people like you can be trained to live a somewhat normal life.

  • @ Charlie- Are you kidding me? “Unrelated?” “logical Fallacy of appealing to authority?” First, these are complex issues and there is no one cause and no one solution. The world is not black and white, as you see it, and Fox is not an authority on anything. I gave you several names whose work you can easily look up. Albeit, they are not on Breitbart so it take more than a few clicks. And, I am not an expert on any other these issues. I may have read a few more books than you, but I am not an expert and do not profess to be. There are people who devote their life’s work to these issues that say that most of what you guys post on this site is bullshit and nothing more that regurgitation of what you see on Sean Hannity or hear on Rush Limbaugh. And, as I mentioned to your colleague, just because you don’t use the N word in good company, does not mean you’re not a racist.

    @Conspiracy – Thank you for being honest. I agree, you are using 18th century technology to deal with 21st century problems. You and your ilk are also using an 18th century mindset. I guess that is why you think every black man is a criminal and should be in prison. I’m sure you’re scared shitless your little girl may bring a black man home. Relax.

    @Surefire – You are good, and you got me….again. You’re too smart to be a cop. You’re wasting your talents teaching uppity black kids “lessons.” And, if you really are serious about understanding what is going on in Baltimore, put it in context. I recommend a book titled, Not in My Neighborhood: How Bigotry Shaped a Great American City by Antero Pietila (A white guy) which deal with Baltimore. Then, maybe, maybe, you can begin to understand how we end up with a black ghetto in Baltimore ghetto. It’s not one of those fine books in Killing Something or Other series by Bill O’Reilly, and it does have a lot of little numbers and words in tiny letters in back of the book (we call them footnotes), but its a good read and you may learn a thing or two.

    And, on that note, fine officers, good day.

  • CF:

    Sadly but unsurprisingly, once again you’re way off topic. And you should do your own homework, not demand others do it for you. That’s just intellectual laziness. You are a stereotypical elitist lefty, launching ad hominem attacks instead of discussing facts. No wonder your state of California is circling the drain with intellects like yours.

    You also should probably wipe off your computer monitor from all your spittle which just landed there. It’ll make it easier to read the comments.

  • Whenever I read posts by CF, I’m reminded off the great line by the late comedian Robin Harris, “can somebody put a sock in his mouth…my zipper is stuck”.

    So much bias, elitism and prejudice is spewed from CF the “Lefty Elitist”, if I close my eyes I invision a leftist Governor George Wallace standing on the steps of the state capitol telling all the folks who don’t think like him they aren’t welcome here. I know better than to be baited and drawn in by the words of an idiot, but it’s sooo hard.

  • Not so much the reforms as it is “Southern Redneck” Sessions. The “Right Wing Dings” knows this, but remain silent. Everyone in their right mind knows that a Redneck in a suit is still a Redneck. Remember Governor George Wallace before he was shot. During his final days he recanted his racism and asked African Americans to forgive him.

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