What Are The Implications Of Seeking Tougher Sentences For Drug Crimes?

May 13, 2017
Originally published on May 14, 2017 8:48 am
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MARY LOUISE KELLY, HOST:

Attorney General Jeff Sessions wants prosecutors to get tough on people convicted of drug crimes. He's ordering federal prosecutors to, quote, "charge and pursue the most serious, readily provable offense."

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JEFF SESSIONS: We are returning to the enforcement of the laws as passed by Congress, plain and simple. If you are a drug trafficker, we will not look the other way. We will not be willfully blind to your misconduct.

KELLY: Critics say this move is a throwback to the war on drugs of the '80s and '90s. What it indisputably is is a reversal of Obama administration policy, which tried to keep nonviolent offenders from facing long mandatory minimum sentences. We're joined now by two people who see this issue from different points of view. Marc Mauer is executive director of The Sentencing Project. That's a nonpartisan group that advocates to reduce the country's high incarceration rate, among other things. Marc Mauer, welcome.

MARC MAUER: Good to be here.

KELLY: And also on the line from Austin, Texas, Marc Levin. He's with the group Right on Crime, which makes a conservative case for changing the criminal justice system. Marc Levin, thanks to you for joining us.

MARC LEVIN: Yes, thank you.

KELLY: Marc Mauer, let me throw it to you first. What, as you see it, will this new policy do?

MAUER: Well, prosecutors always have discretion in how they charge cases. Their job is to seek justice. It depends on a variety of circumstances. What's likely to happen now with the new policy is that we'll see a much broader adoption of lengthier mandatory minimum sentences both for high-level people in the drug trade but also for lower and mid-level people in the drug trade as well.

KELLY: OK, so to be clear, the law isn't changing. This is the way prosecutors are being instructed to proceed.

MAUER: Exactly. And prosecutors always had discretion under Eric Holder. They did - and under Jeff Sessions they still do.

KELLY: Marc Levin, is this the way you see it as well?

LEVIN: It certainly is a bit of a departure from the Holder memo. But if there was never a Holder memo, this wouldn't be much different than what anyone might expect. I think that it clearly does say that exceptions can still be made, but they have to be approved by the U.S. attorney or assistant attorney general or someone designated by them. The real threshold question is what cases a U.S. attorney's office chooses to bring to begin with.

And one of our greatest concerns is over the last several decades, street-corner drug crimes have increasingly been prosecuted in the federal system when they really should still be left to be prosecuted in the state system with kind of the unique federal resources focused on international drug cartels, major crimes across state lines, terrorism, those sorts of things.

KELLY: You know, one way to look at this is this is President Trump fulfilling a promise he made on the campaign trail. He talked a lot about crime. We all remember his inaugural address where he described the country as American carnage. And now - he's been transparent about what he wants to do. Now his attorney general is following through on it. I mean, is there any surprise element to this?

MAUER: No, there's not very much. Certainly when Senator Sessions was in the Senate he was an opponent of sentencing reform legislation that had been moving through...

KELLY: He fought hard against Eric Holder's moves to change this.

MAUER: Exactly. In recent years - and this was legislation that had strong bipartisan support led by Senator Grassley of Iowa, chair of the judiciary committee. So while it may be politically popular with the base, you know, the question for Americans certainly should be, will this be effective? Will it be fair? Is it compassionate? And I think that we know on all those fronts that's not going to be the outcome.

LEVIN: Well, and let me just add, though - and, you know, for example, at the same election Trump was elected in Oklahoma, the voters voted over 60 percent of the vote to reduce drug possession from a felony to a, you know, top-level misdemeanor. So - and a lot of states - Georgia, Louisiana - are pursuing major criminal justice reform this year to reduce incarceration of drug offenders, among other things.

So I think that there's a lot of momentum in the states, including with conservative governors leading the way on this. So from our vantage point at Right on Crime we don't see this as changing that. And we also think that it could provide additional impetus for Congress to act.

KELLY: You know, I have to note, neither of you sounds particularly alarmed by this move this week. And I'm interested in that because there has already been backlash from all sides of the political spectrum. The conservative Koch brothers have weighed in against this, civil rights groups have weighed in against this. Both of you sound like this is something you can live with. Am I hearing that correctly?

MAUER: Oh, no, I'm sorry if I understated. No, I'm alarmed by this policy. It's - I think it's...

KELLY: Why?

MAUER: Well, it's very - it's counterproductive. It flies in the face of the evidence we know about what happens when we so-called get tough on crime, get tough on drugs. You know, we've come to lead the world in incarceration. Our sentences are far greater than comparable nations. It's hugely expensive. It's had a tremendous impact on low-income communities of color in particular. You know, the rest of the world looks at the policies in this regard, and it's very embarrassing for the United States. And I think this is only playing on failed policies.

KELLY: Marc Levin, how about you? Step forward? Step backward?

LEVIN: I guess what we're alarmed by is the existing law that - and that needs to be changed. I think that Attorney General Sessions chose one way, and certainly a legal way, a reasonable way, to implement the existing law. And so what we want to do is focus on putting our energy - and fortunately, there's a lot of voices in the administration from Chris Christie to Jared Kushner, Ben Carson who are very - and, of course, Rick Perry, our former governor here in Texas. But these are people that have been very vocal on criminal justice reform.

Once we can get something through Congress there are going to be many voices in the administration, not just Attorney General Sessions, who will be, you know, at the table as far as hopefully having that signed into law. So I think that's where we see our focus being rather than debating about - you know, certainly there are different ways to implement the current law.

We're certainly glad that this doesn't require the attorney general to sign off on any decision by a line prosecutor to pursue a sentence that's not as harsh as what the law might allow. It's hard to - from a legal perspective to say that the memo is somehow illegal or an inappropriate way to implement the existing law.

KELLY: That's Marc Levin with the conservative group Right on Crime. And we also spoke with Marc Mauer, executive director of The Sentencing Project. Thanks to you both.

MAUER: Thanks for having us.

LEVIN: Thank you. Transcript provided by NPR, Copyright NPR.