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  May 12, 2017

Rattling the Bars: Attorney General Reintroduces Harsh Sentencing Rules for Non- Violent Drug Offenses

Kara Gotsch of the Sentencing Project explains how AG Jeff Sessions' new guidelines will boost the prison population and increase costs
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As Director of Strategic Initiatives, Kara Gotsch oversees The Sentencing Projectís federal advocacy work and develops special projects and partnerships to advance the organizational mission of reducing mass incarceration. Gotsch returned to The Sentencing Project in 2016 after serving as its Director.


EDDIE CONWAY: I'm Eddie Conway, coming to you from Baltimore. Welcome to this edition of Rattling the Bars. Today, Attorney General Jeff Sessions issued a new directive to all federal prosecutors, removing all the sentence reforms that was put in place by the Obama Administration. Joining me today to talk about the effect of this new directive is Kara Gotsch. Kara, can you kind of explain what happened? What does this directive mean?

KARA GOTSCH: Sure. Attorney General Jeff Sessions issued a memorandum to all US attorneys within the Department of Justice, revoking what is known as the Smart On Crime Initiative, which was first issued by Eric Holder and continued by Attorney General Loretta Lynch, which re-prioritized federal prosecutors' work. What was critical about it is that it instructed Attorney General Eric Holder's original Smart On Crime memorandum, it de-prioritized the prosecution of low level of drug offenses and the pursuit of harsh mandatory minimums for people who are considered low level drug offenders. That is now gone, and instead, we have a directive that instructs prosecutors to penalize people or seek penalties that are the harshest allowable and provable, in which they believe is provable.

What is important to know is that for the last number of years, we have had broad bipartisan support on Capitol Hill for reform of sentences for drug offenses. There's been a growing understanding that the federal government has extreme penalties for what are constituted as relatively low level drug offenses, including people serving life without parole sentences for non-violent drug offenses. There really has been a lot of movement to reform those policies. Congress, unfortunately, before President Obama left was unable to pass comprehensive sentencing reform for drug offenses, despite the bipartisan agreement.

What had happened, even without congressional approval, was the Department of Justice had reduced the number of low level drug cases they brought into the system, and there also has been some sentencing guideline changes instituted by the US Sentencing Commission that had resulted in a reduction of the federal prison population since 2013 of about 30,000 people, which is quite extraordinary. The BOP had never seen a reduction in their prison population for the previous 40 years, so this was something to be really proud of. Instead, we saw federal prosecutors bringing cases that were much more high level. They were going after people who were supervisors or drug kingpins, people who had violent histories, people that were serious cases and not the low level drug offenders who predominately constituted much of the federal case load up until that point and the Smart On Crime Initiative.

With Attorney General Jeff Sessions' memo, I expect a full reversal. We will see an increase in the Bureau of Prisons. We will see more low level people coming into the federal prison system for drug crimes, which we know has a racially disparate impact, which we know will create significant overcrowding because they already have an overcrowding problem and increasing the prison population anymore will just exacerbate those problems, which causes safety issues. It will have real consequences, excuse me, for family members and people who are entangled in the criminal justice system.

EDDIE CONWAY: It seems that the former Attorney General Eric Holder is also suggesting that it will break the federal prison budget in terms of raising the cost of how much it takes to incarcerate people. Is this going to have also an economic impact on the federal budget?

KARA GOTSCH: Absolutely, and that's a really critical point. When President Trump issued his budget blueprint earlier this year, under the Department of Justice, they identified a billion dollar cost savings at the Department of Justice because of the prison population reduction at BOP. With that, they planned to use that extra billion dollars on other funding, expenses, for DOJ, including law enforcement priorities. Their intention is to ratchet up the prison population again. They will not have that money. It's very ironic for them to celebrate the cost savings that Eric Holder's Smart On Crime Initiative had produced, but then in the same breath, revoke it and decimate any cost savings that was generated because they just want to return to the past. It's clearly what this memorandum is detailing.

EDDIE CONWAY: Is there any reaction to this in America among organizations or individuals? If so, who and why?

KARA GOTSCH: There has been a very loud chorus of statements coming out today from members of Congress, from civil rights leaders, civil rights organizations, like the Leadership Conference for Civil and Human Rights, the American Civil Liberties Union, law and criminal justice reform organizations, like the National Association of Criminal Defense Lawyers, my organization, the Sentencing Project. Across the board there is absolute outrage that we would return to an escalation of the war on drugs, which has just been fundamentally flawed and a waste of resources that has not addressed the drug problem, but instead, locked people up for far too long and decimated many communities, particularly communities of color. A return to policies that we know have been uneffective, even at curbing crime, is just profoundly disturbing, and so we had heard a lot of outcry coming from across the spectrum.

EDDIE CONWAY: Mm-hmm (affirmative). I heard you mention earlier that there was an effort, a bipartisan effort, in Congress for prison reform. Is that bill in Congress and would that have any kind of impact of reversing this new policy?

KARA GOTSCH: Yeah. Congress plays a critical role in the federal criminal justice system. Legislation similar to what was introduced last year, I understand from Republican Senator Chuck Grassley, who chairs the Judiciary Committee, it is his intention to reintroduce sentencing reform and criminal justice reform. I hope that they will act quickly in response to what the Department of Justice has done.

EDDIE CONWAY: What, if anything, can American citizens do? Is there anything they can do to kind of like try to combat this?

KARA GOTSCH: Absolutely. I think what they need to do is use their voice. I know it sounds simplistic, but it is so fundamentally critical to our democracy and good government to have constituents way in with their members of Congress, with their senators, and even with Attorney General himself, to communicate their concerns about an escalation of the war on drugs, a return to locking up people who are low level drug offenders in federal prisons for decades, the harm that that causes. That is critically important for lawmakers and public officials to hear that message. There is an opportunity to move legislation. We know that there's support on the Hill for it, including from Paul Ryan, who is the current Speaker of the House. Let them know that they need to act. I hope if there's any silver lining to what the Department of Justice has done this week, that it will motivate citizens and motivate members of Congress to take action, to make sure finally that our sentencing laws and sentencing and drug policies are fair and proportional and do justice.

EDDIE CONWAY: Okay. Thank you. We'll keep an eye on this and we'll probably talk about it again later on. Thanks for joining me.

KARA GOTSCH: Thank you for having me.

EDDIE CONWAY: Okay, and thank you for joining this edition of Rattling the Bars.



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