Sessions orders return to tough drug war policies, countering Maryland approach

and Contact ReporterThe Baltimore Sun

Attorney General Jeff Sessions has ordered federal prosecutors to return to tough policies against drug abusers, ending a push by the Obama administration to clear prisons of lower-level criminals serving long, mandatory minimum sentences.

Sessions rescinded two policy memos signed by a predecessor, former Attorney General Eric H. Holder Jr., that urged prosecutors to avoid charging nonviolent drug offenders with crimes carrying mandatory minimum sentences.

In a memo released Friday, Sessions instructed Justice Department lawyers to "charge and pursue the most serious, readily provable offense." By definition, he added, the most serious offenses "carry the most substantial guidelines sentence, including mandatory minimum sentences."

The Sessions memo runs counter to the principles that prompted Maryland to enact the Justice Reinvestment Act in 2016. The law, passed with bipartisan majorities in both houses of the General Assembly and signed by Republican Gov. Larry Hogan, seeks to reduce incarceration and redirect the financial savings into treatment for offenders. It also backs off mandatory minimum sentences for nonviolent drug crimes.

Hogan spokeswoman Amelia Chasse said Sessions' direction to federal law enforcement officials "does not impact Maryland state law or Hogan administration policies." She said the administration understands that solving the heroin and opioid overdose crisis requires a "multi-pronged strategy," including providing treatment and a second chance for people convicted of minor drug crimes.

State lawmakers involved with crafting and passing the Justice Reinvestment Act were sharply critical of Sessions' order.

"It's exactly the opposite of not just what Maryland is doing but states all across the country are doing," said state Sen. Bobby Zirkin, chairman of the Judicial Proceedings Committee. He said Sessions is calling for a return to "a failure of a strategy."

Del. Kathleen Dumais, vice chair of the House Judiciary Committee and an architect of the Maryland law, called Sessions' move "outrageous."

"Basically, the War on Drugs didn't work, and to think that our attorney general is possibly going back to that is just incomprehensible," the Montgomery County Democrat said.

Sessions long has been aggressive on drug crimes, starting in 1975 when he became a federal prosecutor, and later when he served as U.S. attorney for the Southern District of Alabama from 1981 to 1993.

During his four terms in the U.S. Senate, Sessions supported a law that reduced the difference in sentences for crack cocaine and the powdered form of the drug, a disparity that had disproportionately penalized African-Americans.

But Sessions has strongly condemned marijuana use, and helped block a 2016 bill that would have eased federal sentencing for using it.

Zirkin, a Baltimore County Democrat, said that while Sessions might think he's being tough on crime, research shows "you can't jail your way out of addiction." He said harsh drug war policies led minor offenders to commit more serious crimes after they were released from prison, creating more victims.

He pointed to heavily conservative Utah and Texas, which are among the states veering toward treating offenders, not placing them in prison.

Zirkin said Sessions' strategy ignores that trend.

"It's widely accepted these strategies from the 1980s are completely ineffective. ... It's like he's ignoring all the research that has happened since then," Zirkin said.

With the rise of federal mandatory sentencing laws in the 1980s and 1990s, judges were stripped of much of their discretion on how to sentence drug users. Decisions made by prosecutors often effectively determine how long offenders will spend in prison.

For example, if federal prosecutors include the amount of drugs in their written charges, that can trigger a mandatory minimum sentence.

They also have the discretion to file motions for so-called sentence "enhancements," which can effectively double drug sentences for repeat offenders. Some prosecutors use these tough tools as a hammer in plea negotiations, or to force offenders to cooperate.

Starting in 2013, Holder instructed federal prosecutors to use that power more sparingly and to reserve the toughest charges for high-level traffickers and violent criminals. Sessions' memo undoes that direction.

"As a nation, we are coldly efficient in our incarceration efforts," Holder said in a speech decrying the growth in America's prison population.

The Obama-era policies led to a sharp decline in the number of drug offenders hit with mandatory minimum sentences, from 62 percent in 2013 to 44 percent last year, according to U.S. Sentencing Commission data compiled by a sentencing reform group, Families Against Mandatory Minimums, or FAMM.

"Those numbers will go up when you are telling prosecutors to charge the harshest crimes they can get," said Molly Gill, FAMM's director of federal legislative affairs.

"It's really ironic," she added. "Jeff Sessions touts himself as a champion of public safety, and they want to waste taxpayers' money on people who aren't that much of a threat."

Republican Sen. Michael J. Hough, of Frederick County, said he hadn't read Sessions' order but probably would disagree with him on the use of mandatory minimums. He said the burden should fall on Congress to follow the approach Maryland and more than 30 other states have taken.

"The policy we adopted in Maryland is really great and I wish the feds would adopt it," said Hough, who sits on Judicial Proceedings Committee.

But Gill said the crackdown ordered by Sessions and Republican President Donald J. Trump probably signals an end to efforts in Congress to reduce mandatory sentences.

"I think right now that's probably dead," she said.

In his memo, Sessions said prosecutors must disclose "all facts" relevant to a sentence, like drug amounts. If prosecutors decide to deviate from the tough policies, they have to get a supervisor's approval, Sessions said. Deputy Attorney General Rod Rosenstein will be responsible for overseeing the new guidelines.

"Our responsibility is to fulfill our role in a way that accords with the law, advances public safety, and promotes respect for our legal system," Sessions' memo says, saying his goal is to "fully utilize the tools Congress has given us."

Hough expressed skepticism that Sessions' memo would have a significant effect on how prosecutors do their jobs.

"They're going to threaten the maximum penalty until they get a plea or something they want," Hough said.

Baltimore Sun reporter Jean Marbella contributed to this article.

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