On Criminal Justice, Sessions Is Returning DOJ to the Rule of Law
Andrew C. McCarthy, National Review
A response to Joyce Vance and Carter Stewart
Two former top Obama-appointed prosecutors co-author a diatribe against Trump attorney general Jeff Sessions for returning the Justice Department to purportedly outdated, too “tough on crime” charging practices. Yawn. After eight years of Justice Department stewardship by Eric Holder and Loretta Lynch, and after Obama’s record 1,715 commutations that systematically undermined federal sentencing laws, we know the skewed storyline.
The surprise is to find such an argument in the pages of National Review Online. But there it was on Tuesday: “On Criminal Justice, Sessions Is Returning DOJ to the Failed Policies of the Past,” by Joyce Vance and Carter Stewart, formerly the United States attorneys for, respectively, the Northern District of Alabama and the Southern District of Ohio. Ms. Vance is now lecturing on criminal-justice reform at the University of Alabama School of Law and doing legal commentary at MSNBC. Mr. Stewart has moved on to the Draper Richards Kaplan Foundation, fresh from what it describes as his “leadership role at DOJ in addressing inequities in the criminal justice system,” focusing on “alternatives to incarceration,” and “reducing racial disparities in the federal system.”
The authors lament that Sessions has reinstituted guidelines requiring prosecutors “to charge the most serious offenses and ask for the lengthiest prison sentences.” This, the authors insist, is a “one-size-fits-all policy” that “doesn’t work.” It marks a return to the supposedly “ineffective and damaging criminal-justice policies that were imposed in 2003,” upsetting the “bipartisan consensus” for “criminal-justice reform” that has supposedly seized “today’s America.”
This is so wrongheaded, it’s tough to decide where to begin.
In reality, what Sessions has done is return the Justice Department to the traditional guidance articulated nearly four decades ago by President Carter’s highly regarded attorney general, Benjamin Civiletti (and memorialized in the U.S. Attorney’s Manual). It instructs prosecutors to charge the most serious, readily provable offense under the circumstances. Doesn’t work? This directive, in effect with little variation until the Obama years, is one of several factors that contributed to historic decreases in crime. When bad guys are prosecuted and incarcerated, they are not preying on our communities.
The thrust of the policy Sessions has revived is respect for the Constitution’s bedrock separation-of-powers principle. It requires faithful execution of laws enacted by Congress.
A concrete example makes the point. Congress has prescribed a minimum ten-year sentence for the offense of distributing at least five kilograms of cocaine (see section 841(b)(1)(A)(ii) of the federal narcotics laws). Let’s say a prosecutor is presented with solid evidence that a defendant sold seven kilograms of cocaine. The crime is readily provable. Nevertheless, the prosecutor follows the Obama deviation from traditional Justice Department policy, charging a much less serious offense: a distribution that does not specify an amount of cocaine — as if we were talking about a one-vial street sale. The purpose of this sleight of hand is to evade the controlling statute’s ten-year sentence, inviting the judge to impose little or no jail time.
That is not prosecutorial discretion. It is the prosecutor substituting his own judgment for Congress’s regarding the gravity of the offense. In effect, the prosecutor is decreeing law, not enforcing what is on the books — notwithstanding the wont of prosecutors to admonish that courts must honor Congress’s laws as written.
Absent this Justice Department directive that prosecutors must charge the most serious, readily provable offense, the executive branch becomes a law unto itself. Bending congressional statutes to the executive’s policy preferences was the Obama approach to governance, so we should not be surprised that a pair of his appointed prosecutors see it as a model for criminal enforcement, too. But it is not enforcement of the law. It is executive imperialism. It is DACA all over again: “Congress refuses to codify my policy preferences; but I have raw executive power so I shall impose them by will . . . and call it ‘prosecutorial discretion.’” (In truth, it is a distortion of prosecutorial discretion.)
It should not be necessary to point out to accomplished lawyers that, in our system, “bipartisan consensus” is not a comparative handful of Democrats and Republicans clucking their tongues in unison. Yes, between leftist hostility to incarceration and libertarian skepticism about prosecutorial power, there is common ground among some factions of lawmakers when it comes to opposing our allegedly draconian penal code. But these factions are not much of a consensus. The only consensus that matters is one that drums up support sufficient to enact legislation into law. “Criminal-justice reform” is of a piece with “comprehensive immigration reform” and the Obama agenda: If it actually enjoyed broad popularity, resort to executive fiat would be unnecessary — Congress would codify it.
The criminal-justice “reformers” want mandatory-minimum-sentencing provisions eliminated and other sentencing provisions mitigated. Yet, despite the sympathetic airing they get from the “progressive” mainstream media, they are unable to get their “reforms” passed by Congress. How come? Because strong majorities of lawmakers understand themselves to be accountable to commonsense citizens — people who aren’t “evolved” enough to grasp how reducing the number of criminals in prisons will somehow decrease the amount of crime. Most of us benighted types proceed under the quaint assumption that, even in “today’s America,” the streets are safer when the criminals are not on them.
In light of the caterwauling about mandatory-minimum sentencing by people either unfamiliar with or in a state of amnesia about what the federal system was like before it was instituted, it is worth repeating: Such provisions mean that the public, rather than the judge, decides the minimum appropriate term for serious crimes. As a class, judges are elite products of American universities and tend to be more left-leaning than the general public. That is particularly the case with respect to President Obama’s 335 judicial appointees, many of them — like Obama himself, as well as Vance and Stewart — philosophically resistant to incarceration as a response to crime. We can certainly repeal mandatory minimums, but if we do, it will vest those judges with unfettered discretion to mete out punishment. Rest assured, such sentences will not resemble the ones most of us would impose. Note also what the “reformers” do not tell you about mandatory minimums: (a) Congress has enacted a “safety valve” that allows a judge to waive them in cases involving first offenders whose crimes do not involve guns; and (b) they can also be waived if a defendant cooperates with government investigations. By and large, mandatory minimums are applied to hardcore criminals — as one would expect, since they are mainly triggered by very large amounts of illegal narcotics and the use of firearms during violent crimes.
It is always worth considering whether sentencing terms are too severe — or, for that matter, insufficiently severe. Criminal statutes can be modified by legislation, which reflects the judgment of the people’s representatives. The fact that they have not been, notwithstanding the purported “consensus” for “reform,” suggests that the public is not convinced of the need for such modification — or, perhaps, that our representatives grasp the need for a check on the judges.
Unable to change the law, the “reformers” are reduced to arguing that justice happens only when prosecutors ignore the law. If you’re Jeff Sessions and you say, “No, you know, I think we’ll have them follow the law,” you’re a Neanderthal.
Vance and Stewart persist in the mythology of federal penitentiaries overflowing with “nonviolent drug offenders.” They must use this deceptive term because what they’d like to be able to claim — namely, that the prisons teem with sad sacks rotting away on misdemeanor drug-possession crimes — is patently false. Federal prosecutorial resources are targeted at narcotics felonies, often involving significant distribution organizations and importation networks.
These schemes are inherently violent. Cocaine, heroin, and the like are illegal commodities that generate major cash transactions. Traffickers can’t go to the police when they need to protect a shipment, or sue in court when they get cheated. They therefore protect themselves by cultivating a reputation for violence — which requires liberal resort to violence. Even if an individual drug dealer happens to be unarmed when apprehended, it was the omnipresent specter of violence that enabled his enterprise to thrive. That is why, for decades, evidence of guns, ammunition, and other weaponry has been admissible to prove the existence of narcotics conspiracies — guns, federal jurisprudence teaches, are “tools of the drug trade.”
Vance and Stewart advance the now familiar prattle that what they describe as “excessive reliance on arrests and extended incarceration” — translation: enforcing the criminal laws against narcotics trafficking and violent crime — has “disparately impacted racial minorities and the poor” and is responsible for “the broken relationship between police departments and the communities they are sworn to serve and protect.”
This is unmitigated nonsense. As Heather Mac Donald has repeatedly demonstrated, based on hard evidence, the disparate impact that the enforcement of law has on racial minorities is a function of offense behavior. The brute fact is that black people, taken as a group, commit more crimes than other racial and ethnic groups. Of course, in the day-to-day work of police and prosecutors, racialized bean-counting is irrelevant. We don’t treat people as groups — it’s the Left’s agitators who want us to view people not as individuals but as members of oppressed classes. In our system, however, guilt is personal. That is real justice, not “social justice.”
Regardless of the root causes, it is a remorseless fact that if you are going to enforce the laws, you necessarily will most often encounter the people who most often violate them. And you most often encounter them because they are violating the law, not because of some “institutionalized” bias. We know crimes are being committed not because of statisticians but because of victims. If you want to obsess over groups, maybe our sympathetic attention should shift to the prey rather than the predators — the racial minorities and poor people who by an outsize margin are victims of crime. That’s the disparate impact worth fretting over. And it is exacerbated when the laws are not enforced.
Moreover, the relationship between police departments and the communities they serve is not broken. That is a progressive narrative that seeks to blame the higher incidence of crime in minority communities on “institutional racism” in the justice system. Really? In “today’s America,” police departments are more integrated than at any time in history — often run by members of the minority communities that they serve. The court system is run by judges and lawyers educated in American law schools, proud (and often activist) members of the most politically progressive profession in our society — with the possible exception of university professors. The thought that these people would tolerate pervasive racism in their institution is laughable — or at least it should be. The reality of the system is that it bends over backward to avoid even the appearance of racism.
Of course there are bad cops, just as there are bad people in every occupation. But there are fewer of them in policing. Law enforcement tends to draw unusually valorous recruits who want to serve their communities, and who accept that their actions will be scrutinized with a zeal unknown to other professions. In a country of over 320 million people, it is unavoidable that there will be some violent encounters between police and civilians. We should marvel, though, at how relatively rare they are. The problem we have is not that the justice system is racist; it is that the slander that it is racist will cause police to shrink from enforcing the laws, a dereliction that would most harm minority communities.
Vance and Stewart have a point when they object to Attorney General Sessions’s unfortunate fondness for what they call “adoptive forfeiture policies.” As we at National Review have contended (as has Justice Clarence Thomas, Kevin Williamson reminds us), civil asset forfeitures are property seizures without due process of law. A federal spoils system incentivizes police to grab with both hands. Regardless of their effectiveness against drug lords, such forfeitures should be halted — the police should be required to proceed by criminal forfeiture and prosecution, with the due-process safeguards that entails. But that is because civil forfeitures offend the Constitution, not because they feed a left-wing narrative about fractured police–community relations.
Attorney General Sessions is enforcing the law, and doing so within a noble Justice Department tradition of giving force to Congress’s expression of the public will. He is not altering the law by executive fiat, the preference of President Obama, Attorneys General Holder and Lynch, Professor Vance, Mr. Stewart, and the bipartisan minority they portray as a “consensus.”
There is a great deal I don’t like about the legal system either. Statist government has enacted far too many laws, such that the federal government has criminalized too much of what used to be the province of state regulation — or unregulated private behavior. The drug laws do have severe penalties and may work injustice in some cases — although fewer than Vance and Stewart suggest: Though the hands of federal judges are tied by mandatory minimums, they are not bound to follow advisory sentencing guidelines or prosecutorial recommendations. I would certainly be open to mitigating penalties in exchange for thinning out the federal penal code and transferring areas of enforcement responsibility back to the states. The point, however, is that this has to be done by legislation, not by executive autocrats under a stealthy distortion of prosecutorial discretion.
If Professor Vance and Mr. Stewart are right that we are in a new era, if the public has truly been won over to the notion that incarcerating criminals is counterproductive, the next step is very simple: Pass laws that amend the penal code. In the meantime, the Justice Department’s job is to enforce the laws we have. As Attorney General Sessions recognizes, that means charging the most serious, readily provable offense.
— Andrew C. McCarthy is a senior fellow at the National Review Institute and a contributing editor of National Review.
