David Cole is national legal director of the American Civil Liberties Union. Marc Mauer is executive director of the Sentencing Project.
Attorney General Jeff Sessions is right to be concerned about recent increases in violent crime in some of our nation’s largest cities, as well as a tragic rise in drug overdoses nationwide [“Lax drug enforcement means more violence,” op-ed, June 18]. But there is little reason to believe that his response — reviving the failed “war on drugs” and imposing more mandatory minimums on nonviolent drug offenders — will do anything to solve the problem. His prescription contravenes a growing bipartisan consensus that the war on drugs has not worked. And it would exacerbate mass incarceration, the most pressing civil rights problem of the day.
Sessions’s first mistake is to conflate correlation and causation. He argues that the rise in murder rates in 2015 was somehow related to his predecessor Eric Holder’s August 2013 directive scaling back federal prosecutions in lower-level drug cases. That policy urged prosecutors to reserve the most serious charges for high-level offenses. Holder directed them to avoid unnecessarily harsh mandatory minimum sentences for defendants whose conduct involved no actual or threatened violence, and who had no leadership role in criminal enterprises or gangs, no substantial ties to drug trafficking organizations and no significant criminal history. (Mandatory minimums can lead to draconian sentences, as in the case of Ramona Brant, a first-time offender sentenced to life imprisonment for her part in distributing drugs at the direction of an abusive boyfriend). Individuals who met the stringent criteria of Holder’s policy would still be prosecuted, but they would be spared overly long mandatory minimums. Sessions offers no evidence that this policy caused the recent spikes in violent crime or drug overdoses. There are three reasons to doubt that there is any significant connection between the two.
First, federal prosecutors handle fewer than 10 percent of all criminal cases, so a modest change in their charging policy with respect to a subset of drug cases is unlikely to have a nationwide impact on crime. The other 90 percent of criminal prosecution is conducted by state prosecutors, who were not affected by Holder’s policy.
Second, the few individuals who benefited from Holder’s policy by definition lacked a sustained history of crime or violence or any connections to major drug traffickers.
Third, the increases in violent crime that Sessions cites are not nationally uniform, which one would expect if they were attributable to federal policy. In 2015, murder rates rose in Chicago, Cleveland and Baltimore, to be sure. But they declined in Boston and El Paso, and stayed relatively steady in New York, Las Vegas, Detroit and Atlanta. If federal drug policy were responsible for the changes, we would not see such dramatic variances from city to city.
Nor is there any evidence that increases in drug overdoses have anything to do with shorter sentences for a small subset of nonviolent drug offenders in federal courts. Again, the vast majority of drug prosecutions are in state court under state law and are unaffected by the attorney general’s policies. And the rise in drug overdoses is a direct result of the opioid and related heroin epidemics, which have been caused principally by increased access to prescription painkillers from doctors and pill mills. That tragic development calls for treatment of addicts and closer regulation of doctors, not mandatory minimums imposed on street-level drug sellers, who are easily replaced in communities that have few lawful job opportunities.
Most disturbing, Sessions seems to have no concern for the fact that the United States leads the world in incarceration; that its prison population is disproportionately black, Hispanic and poor; or that incarceration inflicts deep and long-lasting costs on the very communities most vulnerable to crime in the first place. As of 2001, 1 of every 3 black male babies born that year could expect to be imprisoned in his lifetime, and while racial disparities have been modestly reduced since then, African Americans are still a disproportionate share of the prison population. Mass incarceration has disrupted families, created even greater barriers to employment and increased the likelihood that the next generation of children will themselves be incarcerated. Advocates as diverse as the Koch brothers and George Soros, the Center for American Progress and Americans for Tax Reform, the American Civil Liberties Union and Right on Crime agree that we need to scale back the harshness of our criminal justice system.
Rather than expanding the drug war, Sessions would be smarter to examine local conditions that influence crime and violence, including policing strategies, availability of guns, community engagement and concentrated poverty. Responding to those underlying problems, and restoring trust through consent decrees that reduce police abuse, hold considerably more promise of producing public safety. Sessions’s revival of the failed policies of the past, by contrast, has little hope of reducing violent crime or drug overdoses.
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