Trump's Justice Department is trying to unravel the past 10 years of criminal justice reform

President Richard Nixon launched the war on drugs in 1971.

“America’s public enemy number one in the United States is drug abuse,” he declared. “In order to fight and defeat this enemy, it is necessary to wage a new, all-out offensive.”

The story of how the war on drugs came to be is both fascinating and depressing. Dan Baum, writing for Harper’s magazine last year, explained in great deal not just how counterproductive the policy has been but also its political roots.

Nixon saw drug use as tied to his two main political enemies: the antiwar left and black people.

“We knew we couldn’t make it illegal to be either against the war or black people,” former Nixon aide John Ehrlichman told Baum, “but by getting the public to associate the hippies with marijuana and blacks with heroin, and then criminalizing both heavily, we could disrupt those communities.”

Thus began the disastrous war on drugs, which we’ve waged for nearly half a century with objectively horrid results. Under the Obama administration, we began to slowly change course. There was nothing like a full reversal, but the Department of Justice did provide more flexibility to prosecutors in a broader effort to reduce the prison population.

Whatever progress was made under Obama is now at risk, however.

In a two-page memo released last week, Attorney General Sessions directed federal prosecutors to seek the most severe charges and sentences against defendants, including low-level offenders.

While the memo doesn’t reference drugs or the drug war, it was almost certainly conceived with it in mind. Sessions has long lauded the drug war, and even among Republicans he is extreme in his hardliner stance. So a renewed emphasis on sentencing guidelines is hardly surprising.

But this is a major shift in federal policy. Sessions’s maximalist approach essentially unravels the Obama-era policies that attempted, with some success, to reduce the prison population.

Former Attorney General Eric Holder, who served from 2009 to 2015, called the policy an “ideologically motivated, cookie-cutter approach that has only been proven to generate unfairly long sentences that are often applied indiscriminately and do little to achieve long-term public safety.”

The immediate and long-term impact of Sessions’s policy remains to be seen. If implemented, does it amount to redeclaration of the drug war? How quickly will it produce a spike in the prison population? Given the unpopularity of the drug war, will states feel empowered to push back?

To answer these questions, I spoke to Inimai Chettiar, director of the Brennan Center’s Justice Program at New York University. Founded in 1995, the Brennan Center is a progressive public interest think tank focusing on criminal justice reform and voting rights. Chettiar writes regularly about mass incarceration and the economics of the criminal justice system.

Our conversation has been edited for length and clarity.

Sean Illing

In his memo, Jeff Sessions wrote: “Prosecutors should charge and pursue the most serious, readily provable offenses.” The wording is fairly straightforward, but I want to be as clear as possible. What, exactly, is he instructing prosecutors to do?

Inimai Chettiar

He's basically telling them to charge the highest crime and impose the longest sentence possible, which is a reversal of the memo from Holder in 2014 that instructed prosecutors to use their discretion, particularly in drug cases, to reduce charges and sentences.

Sean Illing

What sticks out to me in this Sessions memo is the emphasis on sentencing “consistency,” as though being consistent is a virtue unto itself. If the policy is wrongheaded or counter-productive, doing it consistently is even worse.

Inimai Chettiar

Exactly. I think what you said is correct, that the concern should be more about whether the policy is right or wrong as opposed to whether or not it's consistent. I think one of the things that Holder and others have tried to do was to implement more proportionality in our criminal justice, and then try be consistent in that way. But obviously this new policy threatens to undo that proportionality.

Ernesto Benavides/AFP via Getty Images

Sean Illing

Does this new policy amount to a complete reboot of the drug war?

Inimai Chettiar

I think we’re leading in the direction of instigating a new drug war.

Sean Illing

How so?

Inimai Chettiar

Because it says in every single case we ought to charge the maximum count possible. And then it adds that prosecutors must bring to a sentencing judge any information that might invoke a mandatory minimum. These are the policies that arose alongside the drug war.

So Sessions is basically saying not only charge them maximally but that prosecutors are now tied to recommending the strongest sentence possible as well. And so it's a reversal of what we've seen in the past 10 years or so, which is people looking at trying to reduce the prison population and trying to reduce unnecessarily long sentences. It doesn't specifically talk about drugs, but the implication is that it doesn't matter if it's a violent crime or a serious crime or a drug crime or a nonviolent crime, they have to charge the maximum count regardless.

Sean Illing

I’m searching for a charitable interpretation of this policy, but I can’t find one. It isn’t popular, makes no sense, and won’t solve a single problem. What possible reason is there for doing it?

Inimai Chettiar

In Sessions’s misguided opinion, he believes that this will help reduce crime. But that logic has been debunked by research. I think the thing you have to understand is that Sessions is an outlier even in his own party on this issue. And so, even though you have Republicans, Democrats, law enforcement leaders, researchers saying that long sentences aren’t bringing down crime, Sessions doesn't believe that.

He has consistently opposed any congressional effort to reduce the prison population. But he believes, wrongly, that policies to reduce the prison population will increase crime. So that's the charitable interpretation.

Jeff Swensen/Getty Images

Sean Illing

Is there any evidence at all for this line of thinking?

Inimai Chettiar

I think Sessions’s argument is correlating that there have been these spikes in certain cities of crime at the same time that the prison population went down. The problem is there is not a national increase in crime. Crime, nationally, is at historic lows. There are problems in three cities, specifically in Baltimore, that are skewing the national average. He's misstating those statistics to say that there's now an increase in crime, and now we need to go back to these archaic policies.

Sean Illing

Do we have a better causal explanation for these isolated spikes in crime?

Inimai Chettiar

We don't know why these short-term spikes are happening, but what we do know is that the massive crime decline since 1990 was caused primarily by an improvement in economic conditions and policing, and obviously not by increases in sentences.

Sean Illing

Is there any validity to the argument that devoting more resources to low-level crimes will somehow either diminish the drug problem or reduce violent crime?

Inimai Chettiar

No. Research has shown that when you put someone in prison who is a lower-level offender, it either doesn’t help reduce crime or in many cases it can actually increase crime. Because that's giving someone a more severe sentence than they need and obviously putting them in prison with other serious offenders, as a result of which, when they do get released, it’s hard for them to find a stable job due to their criminal record. And so they’re left with few options and are thus the potential for rearrest increases significantly. So putting low-level offenders into prison is more likely to increase crime in the long-term and it certainly isn’t a good way to reduce crime.

Sean Illing

Part of Sessions’s argument is that drugs and drug dealing leads to all sorts of peripheral crimes because it’s a black market and there are no rules or laws governing it. But that is actually an argument for decriminalization and against prohibition.

Inimai Chettiar

You’re right. I think a lot of this is actually about immigration. In order to justify some of their more extreme policies, Trump and Sessions have been not only saying that there is a national crime spike, which is wrong, but they've also been attributing it to drugs going across the borders and people coming in across the borders and committing crimes. To me, this is really something that is foundational to what they're trying to do with immigration policy.

Sean Illing

So you actually think crime is a secondary concern here?

Inimai Chettiar

I think that the criminal justice policies they're executing are actually collateral damage of their priority, which is their immigration policy. So in order to justify harsh immigration policy, they need to show that there's an increase in crime and an increase in drugs, and they need to do a crackdown, and part of that involves tightening the borders.

Sean Illing

What will this mean for our broader mass incarceration problem, which I know is a focus of yours?

Inimai Chettiar

It is a massive step backward. Most of the prison population is at the state level, so it's really up to the states to take action. Our concern is that the rhetoric of this administration will have a chilling effect on state and local leaders trying to take up reform to reduce their prison population. It really changes the national narrative and makes it seem like the issue is not bipartisan, even though it is.

Prison Policy Initiative

Sean Illing

But the states do have some power here. Is this Sessions directive binding in any way or is it just a soft guideline?

Inimai Chettiar

It is binding because he’s technically the boss of all the US attorneys. The other thing that actually makes it worse is that he has fired 46 Obama-appointed US attorneys and he will be instituting his own. So he is going to have an army of US attorneys who share his mindset, and who are going to actively enforce this in their office.

Sean Illing

I know a lot of people are exasperated by this issue. The political and financial interests behind the drug war are deeply entrenched, even though most of the country recognizes that this policy has failed. How can we get policy to reflect public sentiment on this front?

Inimai Chettiar

We actually released a report that lays out things that Congress can do in the face of what Sessions just did. They include ending the federal subsidization of mass incarceration, ending federal incarceration for lower-level crimes, instituting a police corps program to modernize law enforcement, and enacting sweeping sentencing reform. There are also a number of executive actions that could be taken as well.

I would add that if people are upset about what Sessions has done, they should call on Congress to act. Sessions, after all, can only demand that US attorneys enforce existing laws. The problem is that is federal laws still have extremely high mandatory minimums; if Congress changes those laws, Sessions will have far less discretion.

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