Thursday, May 18, 2017

Trump and Sessions Got It Wrong

Disclaimer: I am a registered Republican (although I can no longer vote) and would have supported President Trump in the last election.

In my inaugural blog, http://www.whitecollarguru.com/2016/12/does-prison-serve-purpose-and-for-whom.html I spoke about the underlying purposes for prison and how for many white collar crimes, prison does not always serve a purpose. Most of my comments thus far have been focused on the issues facing white collar defendants. I have mentioned on more than one occasion that someone who has never been through the justice system or the prison system can not properly opine on how to fix the system. I am going to digress for today and focus on non violent drug crimes as it has been in the news of late. 

Drugs are dangerous. There is no debating that Cocaine, Heroin, Fentanyl, need to be kept off the streets and that those who distribute them need to be punished under the theory that society does need to be protected from such individuals. Yes, they belong in prison.  In the 1980s the drug hysteria, gave rise to the (ongoing) war on drugs and with it mandatory minimum sentences. Unlike most cases where judges have discretion to go below sentencing guidelines, if the case involves a mandatory minimum, the judge does not. As seen from the chart http://famm.org/wp-content/uploads/2013/08/Chart-All-Fed-MMs-NW.pdf some of the minimums are quite harsh. It is quite probable that someone in his 20s will get 30 years in prison for a relatively small amount of drugs simply because it is his second offense. While no one will argue that prison time is an important remedy for drug trafficking offenses, 30 years is quite excessive. I have met quite a few individuals who are well into their 60s and have gotten such sentences. Having spent time with them, I assure you that there is no reason whatsoever for them to be incarcerated for such extended periods. They are by and large decent people who yes, made mistakes, but are not the "evil drug dealers" so often portrayed in the media. They are unable to return to drug dealing even if they would want to and they certainly do not represent a threat to society. What's worse is even when they are released, they are utterly unprepared to reintegrate into society. Their best and most productive years have been spent in prison. There are those who will argue that a 20 year sentence deters such crimes. This is argument is refuted that drug use is more prolific than ever. We have lost the war on drugs. According to the Center for Disease Control, fatal drug overdoses were the highest on record in 2014. Does anyone think for a second that mandatory minimums and all the money thrown at the war on drugs has even made a dent? The deterrent argument as a basis for mandatory minimums has been utterly refuted.

President Obama, recognized the insanity of these sentenced and commuted more sentenced than any of his predecessors. Almost all of his commutations were reserved for non violent drug offenses. The problem with Obama's approach was that he did not focus at all on many of the white collar inmates who were also serving disproportionately long sentences. Remember, one count of wire can carry a sentence of 20 years. Obama was interested in reducing the prison population and directed US Attorneys across the nation to adjust charges so as to avoid the mandatory minimums, According to a 2013 directive by then Attorney General Eric Holder, prosecutors were told not to specify the amount of drugs involved in cases of low level or non violent drug offenders thereby enabling judges to issue sentences below the mandatory minimums. Sadly, the the Trump administration through the new Attorney General Jeff Sessions, has withdrawn this memo and has directed prosecutors that "It is a core principle that prosecutors should charge and pursue the most serious, readily provable offense," http://www.politico.com/f/?id=0000015b-fbf5-de0a-a15f-fffdeb680000

The reasons for for this directive are quite curious. Is the Trump administration trying to establish itself as tough on crime? Are they trying to play into the fears of every parent by, in the face of evidence to the contrary, asserting that a policy of mandatory minimums will keep their children safe? Is Jeff Sessions motivated by racial prejudices since this is a policy that is likely to disproportionately affect minorities? Did the private prison companies such as Correction Corp of America  heavily donate to the Trump campaign? Is Russia building private prisons in Siberia so that they can be paid to house non violent drug offenders thereby replacing lost oil revenue? 

Whatever the reason for the decision, the directive is flawed and illogical. As Brett Tolman, a former US Attorney under George W Bush correctly observed, "Decades of experience shows we cannot arrest and incarcerate our way out of America’s drug problem. Instead, we must direct resources to treatment and to specifically combating violent crime. This will help law enforcement do our jobs better.” The approach of using excessive incarceration unnecessarily destroys lives, breaks up families and unnecessarily costs the government billion of dollars every year; money that can be better used forming a new and actually effective war on drugs. Mr. Sessions has it wrong.

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