This morning I awoke to an op-ed published in the Washington Post authored by none other than Jefferson Beauregard Sessions, Attorney General of the United States of America. Attorney General Sessions opines that the Department of Justice must “get tough” on drug offenders and the only path forward in increased incarceration.
What strikes me is Attorney General Sessions stunning ignorance of the effect of the United States Sentencing Guidelines, sentencing enhancements such as “Career Offender” or “Armed Career Criminal” and the potentially devastating effect of a Rule 851 Notice of a prior drug felony conviction. Combined these sentencing provisions can put a young person (most often a person of color according to Bureau of Prisons statistics) in prison for twenty years to life for “conspiring” to sell an amount that triggers a mandatory. And, remember, the mandatory provisions apply to Conspiracy to Distribute A Controlled Substance – meaning the feds can add up all of the weight allegedly distributed by ALL members of the Conspiracy when determining the applicable sentencing guidelines range for the street level dealer.
While the Department of Justice and federal law enforcement has the resources to tackle large drug distribution conspiracies, the fact remains that MOST drug investigations and prosecutions are at the state level. While taking out a “drug trafficking organization” may feel satisfying to the investigating agents, it has zero effect on reducing DEMAND from drug users. In other words, doubling down on arrests and prosecutions are, quite literally, meaningless when it comes to addressing the root causes of addiction, drug use and drug abuse.
Attorney General Sessions gives cursory treatment to the upsurge in heroin use and abuse in this country. Completely absent from his statement is the very real role that the pharmaceutical industry has played in dumping enormous amounts of highly addictive prescription opioids on the streets of every American city and town and reaping stunning profits. Individual states recognize this, and that is why states like Ohio and NJ have sued. The fact that the United States Attorney General simply ignores this is inexplicable and inexcusable.
Further, either Attorney General Sessions is truly ignorant of federal charging policy under the Cole memo or he is deliberately lying about its provisions. Federal prosecutors were 100% permitted to bring whatever indictments they believed were appropriate. The Cole memo instructed prosecutors to consider whether or not to subject the addict husting to support their addiction to the full fury of federal prosecution. Here in the Western District of PA opposing counsel assure me that they always weigh whether not to indict (and then always manage to justify indicting the “mule.”) In practice, the Cole memo makes it more difficult for me to go to the prosecutor and ask him or her to review the indictment as they will have already done a Cole memo analysis before bring charges.
If the federal prison population declines I would submit this is a good thing, not an indication that we need to incarcerate more offenders. If federal prison sentences are shorter I would submit this is a good thing as Courts are afforded more sentencing discretion to assess the individual defendant as was ALWAYS intended under federal sentencing law. Seeking enhanced mandatory minimum sentencing substitutes the sentencing discretion of the Court for the unreviewable discretion of a prosecutor, who is likely not motivated to consider the individual characteristics of the defendant.
Attorney General Sessions has hijacked criminal justice reform and veered dangerously towards policies that have been proven an utter failure. It is up to all of us, conservative and liberal alike, to demand that the Attorney General not destroy bi-partisan sentencing reform efforts as we continue to struggle with our approach to this nation’s drug abuse issues.
Patrick K. Nightingale, Esq.