A harsher punishment: federal drug crime policy shifts under Sessions

Professor Mona Lynch is watching closely as federal drug crime policies become more punitive

The federal prison population fell for the first time in a generation during Barack Obama’s presidency as his attorney general issued memos advising U.S. attorneys to be more restrained in prosecuting drug crimes.

Under President Trump’s attorney general, Jeff Sessions, the outlook is starkly different. And Criminology, Law and Society Professor Mona Lynch, who wrote the book “Hard Bargains: The Coercive Power of Drug Laws in Federal Court,” wants to examine how those changes unfold.

Unlike his most recent predecessors, Sessions is a classic drug warrior, intent on heavily prosecuting drug crimes, says Lynch. In May, Sessions initiated a policy shift by issuing a memo instructing the 93 U.S. Attorney offices to pursue the most serious, readily provable offense, including seeking mandatory minimum sentences in all eligible drug cases.

The main takeaway? “Federal sentencing is about to get a lot more punitive,” Lynch says.

The order is similar to one issued by John Ashcroft, who was attorney general from 2001 to 2005. That memo instructed U.S. Attorneys to charge alleged criminals with the most serious offense possible. That period was a very punitive one in federal drug prosecutions.

Then Eric Holder, who was attorney general from 2009 to 2015, lifted Ashcroft’s memo and gave U.S. Attorneys more freedom. Concerned that low-level people were getting prosecuted in the same ways as high-level offenders, he also instructed U.S. attorneys to not seek mandatory minimum sentences against low-level drug offenses.

Lynch documented those changes in four very unique U.S. attorney districts while researching her book “Hard Bargains.”

Though attorneys general don’t have total control, they can wield some oversight over the 93 U.S. attorneys appointed by the president. “It comes and it goes, this level of attempt to shape local policy. The attorney general is supposed to guide decision making, but can’t really have total oversight,” Lynch says.

Sessions’ recent memo signals his strong intent to go back to harsh crime policies. Lynch will be watching closely as Sessions’ orders trickle down to U.S. Attorneys across the country, but so far “everything that Sessions has said is a reversal of Holder.”

Sessions has a long history of opposing sentencing reform and pursuing tough-on-crime policies. For instance, in the late 1980s and early 1990s, when he was U.S. Attorney for the Middle District of Alabama, Sessions embraced the use of drug informant networks and threats of extreme punishments to prosecute drug crimes.

These kinds of practices are likely to increase under Sessions’ Justice Department. And they come with risks to fairness and justice, Lynch says.

Federal drug law doesn’t require prosecutors provide evidence of drugs actually changing hands, just information about an agreement to sell, prior deals, future deals or introductions to drug dealers.

“There’s no need to have evidence a deal happened, just a snitch,” says Lynch, who has also researched how informants form the foundation of many drug cases. “In federal court, you can rely solely on informant testimony to prove a drug conspiracy. You don’t need the actual drugs. Informants are incredibly important.”

Additionally, in drug conspiracy cases, the lowest and highest level people in the conspiracy are all responsible for the same weight of drugs, even if one is just a courier and the other is a kingpin.

But relying on snitches is inherently flawed, Lynch says. Informant networks end up getting highly racialized by virtue of how law enforcement develops informants. Friends and family are pressured to turn on each other in exchange for softer sentencing and other benefits.

One of the results is that most drug defendants don’t go to trial, because the punishment costs of doing so are too high if they’re found guilty. Instead, defendants are pressured into settling.

Lynch is currently working on a study that is an extensive mock trial experiment, to see how jurors view informants and defendants, including how their racial characteristics shape decision-making. She also hopes to launch a follow-up study to the research in “Hard Bargains.”

-May 25, 2017