Jeff Sessions is quietly preparing to double down on mass incarceration
In the whirlwind first few months of the Trump administration, it’s been easy to lose track of Jefferson Beauregard Sessions III. But with the nation’s gaze fixed on the GOP’s effort to gut Obamacare, Russian intrigue in the White House, and Trump’s tweets du jour, the attorney general has laid out his vision for the future of federal law enforcement.
While still short on specific policy changes, Sessions has made it clear that he plans to crack down on drugs and immigration while resuscitating the harsh sentencing laws that have given the United States the world’s highest incarceration rate.
In 1980, crime was rising and state and federal prisons housed just 329,122 inmates. Now, about 1.5 million prisoners sit in the same facilities, and crime is relatively low. It’s easy to assume the two trends are connected. But researchers say that’s a dangerous oversimplification. And even the authors of the original mandatory-minimum laws warn against sending more people to prison for longer as a way to combat crime.
When Sessions spoke to local cops and federal agents in Richmond, Virginia, on March 15, the former Alabama senator delivered what’s become a stump speech of sorts. But before laying out his plan to “combat violent crime and restore public safety,” he needed to reconcile his approach with the fact that U.S. crime rates have plummeted and most places in the country are safer than they’ve been in decades.
“Overall, crime rates in our country remain near historic lows,” Sessions said. “Murder rates are half of what they were in 1980. The rate of violent crime has fallen by almost half from its peak.” And yet, Sessions continued, “the latest FBI data tell us that from 2014 to 2015, the violent crime rate in the U.S. increased by more than 3 percent — the largest one-year increase since 1991.”
“My fear is that this surge in violent crime is not a ‘blip’ but the start of a dangerous new trend,” he said. “I worry that we risk losing the hard-won gains that have made America a safer and more prosperous place.”
In one sense, Sessions is right: There has been a worrying rise in violent crime recently. But it’s mostly been limited to just a few cities, including Chicago, Baltimore, St. Louis, and Milwaukee, where segregation, poverty, drugs, and other factors have combined to push up the murder rate. Everywhere else has been mostly untouched. Crime in New York City last year was at its lowest level since the NYPD began keeping track of statistics.
The gap between the public perception about the crime rate and reality helped elect Trump. A majority of 2016 voters — including 78 percent of Trump supporters — said in a Pew Research Center survey last November that crime has gotten worse in the U.S. since 2008. In fact, according to the latest FBI data, violent crime and property crime rates fell a respective 19 percent and 23 percent between 2008 and 2015.
In response to the perceived crime surge, Sessions created a “Task Force on Crime Reduction and Public Safety,” which will issue a report by July 27 on how to “reverse the recent increases in violent crime.” The group will also conduct “a review of existing policies in the areas of charging, sentencing, and marijuana.” Steve Cook, a federal prosecutor from Tennessee who Sessions picked to serve as his top lieutenant at the Justice Department, will lead the task force. Cook is on the record saying harsher sentences drive down crime.
“When you put criminals in jail, crime goes down,” Cook told the Knoxville News Sentinel last year. “That’s what incapacitation is designed to do, and it works.”
But a 2015 review of more than 40 years of data by New York University Law School’s Brennan Center for Justice found the opposite. The falling crime rate during that period was the result of growing incomes, an aging population, and various other social and economic factors — not mass incarceration. The report concluded that for nearly two decades now, with crime down and the incarceration rate still high, the net positive impact of locking up millions of people “has been essentially zero.”
“Crime isn’t a problem you can incarcerate your way out of when you already have so many people in prison,” said Ames Grawert, an attorney with the Brennan Center for Justice. He added that Sessions has been slowly rolling out changes that will lead to “a reversal of recent declines” in the prison populations.
“Crime isn’t a problem you can incarcerate your way out of when you already have so many people in prison.”
While one faction of the Republican party has embraced criminal justice reform, Sessions has gone in the opposite direction. Last year, along with a handful of other conservative senators, he helped block the Sentencing Reform and Corrections Act, which would have reduced some mandatory-minimum sentences for nonviolent drug crimes from life to 20 years or more, among other modest reforms.
“This isn’t complicated,” Sessions wrote. “More criminals on the streets means more crime and more victims.”
Even some of the people who wrote the laws that Sessions supports think they’re unjust. Eric Sterling, a former Senate Judiciary Committee staffer who helped draft the 1986 law that created most of the current mandatory-minimum sentencing rules, has called the legislation “the greatest tragedy of my professional life.”
Sterling, now executive director of the Criminal Justice Policy Foundation, one of the oldest drug policy reform organizations in the country, recalled how the rules were created in a frenzy following the cocaine overdose death of college basketball star Len Bias. Sterling told VICE News he initially suggested that only Pablo Escobar-level kingpins be subject to mandatory minimums, but some senators wanted a law that would be prosecuted on a regular basis, so that they could take credit for cracking down.
“We ended up with numbers that were street-level, neighborhood-level traffickers instead of cartel leaders,” Sterling said. “The conversation that should have taken place was, ‘What are the implications? Does this make sense?’ Those questions were never asked.”
Richard Nixon repealed the mandatory-minimum laws of the first drug scare in the ‘50s because they were found to be ineffective, but Republicans and Democrats revived them during the crack-era as a way to appear tough on crime. Now, in the midst of the opioid crisis, drugs are once again being used to justify the continued existence of draconian sentencing policies.
“All they are doing is ramping up a failed system in response to a public health problem,” said Diane Goldstein, a retired California police commander who’s now an executive board member at the Law Enforcement Action Partnership, a national nonprofit that opposes the drug war. “We know, empirical, scientific, peer-reviewed research has shown us that tough on crime, in particular tough on drugs, neither deters people from using drugs nor does it deter people from selling drugs. It’s a complete failure.”
“All they are doing is ramping up a failed system in response to a public health problem.”
Sessions doesn’t see it that way. His worldview is shaped by his time as a U.S. attorney in the late ’80s and early ’90s, when he prosecuted drug cases at twice the rate of other federal prosecutors in Alabama. He was on the front line of the war on drugs, and his weapon was putting people in prison. Eventually, crime went down, so in his view, the tactic must have been effective.
“I lived through that dark time in our history,” Sessions said during his March speech in Richmond. “I dealt with its consequences every day as a prosecutor. And I can assure you: We do not want to go back to those days.”
Sessions’ rhetoric sounds all too familiar to Kevin Ring, the author of another mandatory-minimum law who ultimately ended up in prison himself. Ring, a former aide to ex-Missouri Sen. John Ashcroft, was sentenced to 20 months in federal prison for his role in the Jack Abramoff lobbying scandal. Before that, he helped draft anti-meth legislation in 1998 that mirrored the stiff penalties enacted a decade earlier to combat crack.
“They say, ‘Crime was out of control,’ and ‘We did this and it worked.’ But that’s like saying, ‘Every morning I hear the rooster crow and the sun rises,’” said Ring, who now serves as president of Families Against Mandatory Minimums, a national nonprofit that advocates for sentencing reform. “There are other causes and it’s complicated, but it’s easier to make the simple argument, because fear sells.”
In fact, by disproportionately affecting people of color and creating a society where 2.7 million children have an incarcerated parent, there’s evidence to suggest sending more people to prison is making crime worse in the long run. The Brennan Center’s 2015 study found that mass incarceration has led to a “cycle of poverty and unequal opportunity” that’s creating “a tragic waste of human potential for generations.”
Unlike Congress, where Republican infighting and opposition from the Democratic minority can stymie Trump’s legislative agenda, Sessions has virtually unchecked power to reshape the Justice Department. While opposition reportedly exists inside the White House from Trump’s son-in-law Jared Kushner, Sessions, so far, has had his way. In one of his first moves as attorney general, he wiped out the Obama administration’s decision to phase out the use of private prisons to house federal inmates.
It’s still unclear exactly what else Sessions has in mind, but adding to the inmate population will come at a cost. The U.S. already spends $260 billion every year on criminal justice, including $7.2 billion on the Bureau of Prisons, which manages the federal prison system.
But for now, the Trump administration is touting the ability of its budget to save “almost a billion dollars” because of a 14 percent decrease in the federal inmate population under Obama — a trend that Sessions’ policies will likely soon reverse.