[Welcome to The Weekly Bipartisan, where we share instances of meaningful bipartisanship, on the Hill and elsewhere. This project seeks to shine a light on efforts to come together to find common ground and advance shared values in a political climate defined by polarization, an increasingly jaded citizenry, and vilification instead of constructive dialogue and debate. –LDB Editors]
Completing a trilogy of Weekly Bipartisan posts highlighting calls on the Department of Justice, this week’s installment yet again illustrates how criminal justice reform is ripe for bipartisan cooperation.
In the past few years, a (refreshingly) politically-diverse coalition has pursued much needed reforms to the criminal justice system. Unfortunately for those of us in favor of reform, the leading force of opposition to these reforms in the Senate is now our Attorney General. Reversing some policy reforms by former-Attorney General Holder, Attorney General Jeff Sessions released a memorandum directive to all federal prosecutors back in May:
[P]rosecutors should charge and pursue the most serious, readily provable offense. . . . By definition, the most serious offenses are those that carry the most substantial guidelines sentence, including mandatory minimum sentences.
Fortunately, this past week, Senators Mike Lee (R-UT), Dick Durbin (D-IL), Rand Paul (R-KY.), and Cory Booker (D-NY) stepped up to voice their concern, drawing attention to troubling aspects of this revived approach to federal prosecution policy. Here are some of the problems with the Sessions Memorandum.
The DOJ’s Memorandum Overvalues Consistency at the Expense of Individualized Assessment.
The Sessions Memo reverses the individualized assessment approach to charging criminal defendants taken when Holder was AG, and the memo instructs prosecutors to pursue offenses that carry mandatory minimum sentences. Under federal law, judges determine a convicted defendant’s sentence based on the Federal Sentencing Guidelines, minimum sentencing laws, and sometimes both. When a defendant is convicted of a crime with a mandatory minimum, the judge must impose at least the minimum sentence, regardless of the circumstances of the case.
Sessions argues the new directive is a policy that “affirms our responsibility to enforce the law, is moral and just, and produces consistency.”
In theory, this is supposed to reduce sentencing disparities. But as Professors Richard Bierschbach (Cardozo Law) and Stephanos Bibas (Penn. Law) point out, this focus on equality and uniform outputs “often mask[s] other substantive and institutional considerations that lie at the heart of sentencing.” Bierschbach and Bibas argue that this view “presupposes that equal outcomes are good and unequal outcomes are bad. But in many other areas of law and policy, variation is considered neutral or even a positive good.”
The Sentencing Guidelines account for some circumstances that might enhance or mitigate the degree of punishment by adding or subtracting “points” based on such factors, which are ultimately used to calculate a prison sentencing range. But unlike the Sentencing Guidelines, which produce an advisory sentencing range for judges, mandatory minimums tie the judges’ hands by setting a floor for a prison sentence, even if the particular facts of the case demonstrate such a sentence would be unreasonable.
In short, removing a degree of prosecutorial discretion and directing prosecutors to charge defendants with “the most serious, readily provable offense” risks imposing some serious prison time, even if the circumstances make it seem unreasonable. Thus, the specific crime defendants are charged with is of great significance in the length of the sentence imposed. The effects of mandatory minimums are most evident in convictions for drug offenses, which often ties the sentence to the amount of the drug involved. (To illustrate the severity of some of these mandatory minimums, see this table compiled by Families Against Mandatory Minimums)
Note: Senators Rand Paul and Patrick Leahy, along with Representatives Thomas Massie and Bobby Scott introduced the Justice Safety Valve Act to allow judges to impose sentences below mandatory minimums in appropriate cases. That bill is pending before the Senate Judiciary Committee and House Judiciary Committee.
Longer Sentences Do Nothing to Make the Public Safer.
“Ruminating” (hoping one or two of you catch the joke) in a fantastic article, Criminal Law 2.0, Judge Kozinski summarizes society’s view of how the criminal justice should operate. First, he states that “we are committed to a system of harsh sentencing because we believe that long sentences deter crime . . . .” But whether long sentences deter crime is highly questionable. As Bibos writes in The National Review, “The problem with deterrence, however, is that we overestimate prospective criminals’ foresight and self-discipline. At its root, crime is generally a failure of self-discipline.” This is particularly concerning in light of drug crimes – addiction is probably more of a motivating factor than a fear of arrest and prosecution. Accordingly, the letter from the Senators asks the DOJ to respond with an explanation of whether the DOJ has studied the effect of the changes on deterrence, public safety, and recidivism.
Second, Judge Kozinski explains that society views our criminal justice system as necessary to “incapacitate criminals from victimizing the general population while they are in prison.” However, incapacitation may not be a concern when crimes are non-violent or stem from addiction. Plus, the proliferation of federal criminal law has left us with so many federal crimes that it is unknown how many exist – meaning, You’re (Probably) a Federal Criminal.
Problematically, this incapacitation is neither brief, nor proportional. For example, as a former federal judge and former federal prosecutor discuss in a recent article:
A person with one prior drug felony who is charged with possession of 10 grams of LSD, 50 grams of methamphetamine, or 280 grams of crack cocaine with intent to distribute faces 20 years to life. With two priors — no matter how long ago they occurred — the penalty is life without parole.
Of course, many would respond to this concern by pointing to the fact that mandatory minimums are a creature of statute; if we want to reduce these draconian sentences, let’s amend federal law. In fact, that’s precisely what these Senators have been trying to do in the Sentencing Reform and Corrections Act, a federal bill General Sessions opposed as a Senator. States, however, have moved forward on their own reform efforts – with more than half of states relaxing their own mandatory minimums since 2009.
Instead of making the public safer, mandatory minimums have helped build a country with a prison population “over 5 times that of other industrialized nations like Canada, England, Germany, and Australia” along with far longer sentences. According to the ACLU, the U.S. prison population (the world’s largest jailer) rose 408% between 1978 and 2014.
Lengthy Sentences Are Incredibly Expensive with Dubious Benefit in Exchange for the Cost.
High incarceration rates and lengthy prison sentences impose serious costs on society – both fiscally and socially. As Judge Kozinski points out in his article, “Incarceration is an immensely expensive enterprise. It is expensive for the taxpayers, as the average cost of housing a single prisoner for one year is approximately $30,000. A 20-year sentence runs into something like $600,000 in prison costs alone.”
But the social cost is even more alarming. These individuals are taken out of society and placed into an environment with other criminals. Once released, convicts then have an uphill battle reintegrating into society with a criminal record and severed or strained social ties. Longer sentences tend to exacerbate these concerns.
Michigan economics professor Michael Mueller-Smith argues that longer sentences result in more crime after release than they prevent by removing the convict from society. As the Senators cite in their letter, “Any benefit from locking criminals up temporarily is more than offset by the crime increase caused when prison turns small-timers into career criminals.”
If these long sentences don’t make society safer, cost taxpayers inordinate amounts of money, break up communities, and possibly even push criminals back into a life of crime, how is it this policy is “moral and just”?
Although this letter is unlikely to change the mind of General Sessions, it does generate further discussion. Hopefully, General Sessions will look at the questions asked of the Justice Department and consider the objections offered. Until that unlikely time comes, we can at least take a little hope in the fact that one area of law shows promise for bipartisan cooperation. When you see Senator Rand Paul and Senator Kamala Harris sharing one another’s tweets, you know there’s hope.
— Senator Rand Paul (@RandPaul) May 25, 2017
Absolutely. Correcting a system that’s unfair and unjust shouldn’t be partisan. Ready to work with you. https://t.co/FSddz8tefx
— Kamala Harris (@SenKamalaHarris) May 25, 2017
 This policy isn’t exactly new –rather, it reinstates the policy of Attorney General John Ashcroft under the George W. Bush administration, and is “consistent with what Republican administrations do.” Ashcroft’s policy came to an end under Attorney General Eric Holder, who encouraged prosecutors to use their discretion and make individualized assessments of a defendant’s conduct, criminal history, and circumstances leading to the offense.
 The Sentencing Guidelines were declared advisory in United States v. Booker, 543 U.S. 220 (2005).
 However, there are a few exceptions that allow a defendant to escape the mandatory minimum. For example, if a defendant provides “substantial assistance” to government officials and assist them in prosecuting others for more serious conduct, or under the “safety value” for first-time non-violent offenders whose conviction does not involve guns. However, Families Against Mandatory Minimums does a thorough job of explaining why these exceptions are too narrow.
 Richard Bierschbach & Stephanos Bibas, What’s Wrong With Sentencing Equality?, 102 Va. L. Rev. 1447 (2016).
 Hon. Alex Kozinski, Criminal Law 2.0, 44 Geo. L.J. Ann. Rev. Crim. Proc xiii (2015).
 Id. at xii.