In today’s polarized world, there aren’t many issues on which Democrats and Republicans agree. So when they do, we should seize the rare opportunity to move our country forward. One such issue is criminal-justice reform, and specifically the need for sentencing reform for drug offenses.
All across the political spectrum, in red states and blue states, from Sen. John Cornyn, R-Texas, and the Koch brothers to Sen. Patrick Leahy, D-Vt., and the American Civil Liberties Union, there is broad consensus that the “lock them all up and throw away the key” approach embodied in mandatory minimum drug sentences is counterproductive, negatively affecting our ability to assure the safety of our communities.
But last month, Attorney General Jeff Sessions rolled back the clock to the 1980s, reinstating the harsh, indiscriminate use of mandatory minimum drug sentences imposed at the height of the crack epidemic. Sessions attempted to justify his directive in a Post op-ed last weekend, stoking fear by claiming that as a result of then- Attorney General Eric Holder Jr.’s Smart on Crime policy, the United States is gripped by a rising epidemic of violent crime that can only be cured by putting more drug offenders in jail for more time.
That argument just isn’t supported by the facts. Not only are violent crime rates still at historic lows – nearly half of what they were when I became a federal prosecutor in 1989 – but there is also no evidence that the increase in violent crime some cities have experienced is the result of drug offenders not serving enough time in prison. In fact, a recent study by the bipartisan U.S. Sentencing Commission found that drug defendants with shorter sentences were actually slightly less likely to commit crimes when released than those sentenced under older, more severe penalties.
Contrary to Sessions’ assertions, Smart on Crime focused our limited federal resources on cases that had the greatest impact on our communities – the most dangerous defendants and most complex cases. As a result, prosecutors charged more defendants with murder, assault, gun crimes and robbery than ever before. And a greater percentage of drug prosecutions targeted kingpins and drug dealers with guns.
During my 27 years at the Justice Department, I prosecuted criminals at the heart of the international drug trade, from high-level narcotics traffickers to violent gang leaders. And I had no hesitation about asking a judge to impose long prison terms in those cases.
But there’s a big difference between a cartel boss and a low-level courier. As the Sentencing Commission found, part of the problem with harsh mandatory-minimum laws passed a generation ago is that they use the weight of the drugs involved in the offense as a proxy for seriousness of the crime – to the exclusion of virtually all other considerations, including the dangerousness of the offender. Looking back, it’s clear that the mandatory-minimum laws cast too broad a net and, as a result, some low-level defendants are serving far longer sentences than are necessary – 20 years, 30 years, even mandatory life sentences, for nonviolent drug offenses.
Under Smart on Crime, the Justice Department took a more targeted approach, reserving the harshest of those penalties for the most violent and significant drug traffickers and encouraging prosecutors to use their discretion not to seek mandatory minimum sentences for lower-level, nonviolent offenders. Sessions’s new directive essentially reverses that progress, limiting prosecutors’ ability to use their judgment to ensure the punishment fits the crime.
That’s a problem for several reasons. First, it’s fiscally irresponsible and undermines public safety. Since 1980, the U.S. prison population has exploded from 500,000 to more than 2.2 million, resulting in the highest incarceration rate in the world and costing more than $ 80 billion a year. The federal prison population has grown 700 percent, with the Federal Bureau of Prisons budget now accounting for more than 25 percent of the entire Justice Department budget. That has serious public safety consequences: Every dollar spent imprisoning a low-level nonviolent drug offender for longer than necessary is a dollar we don’t have to investigate and prosecute serious threats, from child predators to terrorists. It’s a dollar we don’t have to support state and local law enforcement for cops on the street, who are the first lines of defense against violent crime. And it’s a dollar we don’t have for crime prevention or recidivism reduction within our prison system, essential components of building safe communities.
But just as significant are the human costs. More than 2 million children are growing up with a parent behind bars, including 1 in 9 African-American children. Huge numbers of Americans are being housed in prisons far from their home communities, creating precisely the sort of community instability where violent crime takes root. Indiscriminate use of mandatory minimum sentencing has caused many Americans to lose faith in the criminal-justice system, undermining the type of police-community relationships that are so crucial to making our streets safer.
While there is always room to debate the most effective approach to criminal justice, that debate should be based on facts, not fear. It’s time to move past the campaign-style rhetoric of being “tough” or “soft” on crime. Justice and the safety of our communities depend on it.
Yates served in the Justice Department from 1989 to 2017 as an assistant U.S. attorney, U.S. attorney, deputy attorney general and, briefly this year, as acting attorney general.