President Trump may be disillusioned with Jeff Sessions, but the Attorney General is doing an outstanding job. Perhaps his most significant accomplishment is returning the DOJ to the rule of law by reinstituting guidelines that require prosecutors to charge the most serious offenses and ask for the lengthiest prison sentences.
One indication of the significance of this accomplishment is the howling from Team Leniency, including two former Obama-appointed prosecutors — Joyce Vance and Carter Stewart, formerly the United States attorneys for the Northern District of Alabama and the Southern District of Ohio, respectively. Their lament appears in this article for NRO.
Vance and Stewart contend that Sessions has reinstated a “one-size-fits-all policy” that “doesn’t work.” They call it a return to the “ineffective and damaging criminal-justice policies that were imposed in 2003,” upsetting the “bipartisan consensus” for “criminal-justice reform” that, they claim, is sweeping “today’s America.”
Andy McCarthy demolishes these arguments. He notes that what Vance and Stewart call a one-size-fits-all policy is actually faithful execution of the law. Sessions is simply telling prosecutors to seek the penalty Congress deemed appropriate for a particular offense. He is instructing them not to substitute their judgment for that of Congress.
Andy provides this example:
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. . . .
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. . . .
As for the bipartisan consensus that Sessions supposedly has upset, the obvious answer is that this alleged consensus can’t be much of one because it has not produced a change in sentencing law. As Andy puts it, “in our system, ‘bipartisan consensus’ is not a comparative handful of Democrats and Republicans clucking their tongues in unison.” Rather, “the only consensus that matters is one that drums up support sufficient to enact legislation into law.”
Andy also takes on the Obama-era prosecutors’ claim that the policy Sessions has reinstated “doesn’t work.” To the contrary, the policy, in effect with little variation from from the Carter presidency until the Obama years, is one of several factors that contributed to historic decreases in crime. When bad guys are prosecuted and incarcerated, they can’t prey on our communities. The sooner they are let out, the sooner they commit crimes.
Vance and Stewart also make the familiar arguments about the racial impact of tough sentencing. They ignore the racial impact of the increased crime that results from early release.
Andy doesn’t. He writes:
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.
There’s plenty more straight talk in Andy’s piece. The whole thing is worth reading.