May 14, 2014
How do we reconcile Senator Jeff Sessions' vocal support for the FSA and strong opposition to the SSA?
There are many interesting claims and notable contentions in the letter sent by Senators Grassley, Cornyn and Sessions to their colleagues explaining their opposition to the Smarter Sentencing Act (first reported here). Most notable, I think, are the essential ideas set out at the start and end of the letter: despite a decades-long federal drug war that has grown the size of the federal government and has long included severe mandatory minimums prison terms, we still find ourselves in the midst of a "historic heroin epidemic" which apparently calls for "redoubling our efforts." I believe that the sensible response to ineffective federal government drug policies and practices would be to consider changing some of these policies and practices, not "redoubling our efforts" (and thereby redoubling the size of an apparently ineffective federal government bureaucracy).
But, as the question in the title of this post suggests, I am now especially wondering how Senator Jeff Sessions, who was a vocal supporter of Congress's decision in 2010 to reduce crack mandatory minimum sentences through the Fair Sentencing Act, has now signed on to a letter forcefully opposing a proposal to reduce other drug mandatory minimum sentences through the Smarter Sentencing Act. Notably, in this March 2010 statement, Senator Sessions stated that he has "long believed that we need to bring greater balance and fairness to our drug sentencing laws" and that the FSA's change to crack mandatory minimums will "achieve needed fairness without impeding our ability to combat drug violence and protect victims." In his words, the FSA's reforms to crack mandatory minimums "strengthen our justice system."
But now, four years later, Senator Sessions has signed on to a letter opposing the Smarter Sentencing Act which claims that this proposal to "reduce sentences for drug traffickers would not only put more dangerous criminals back on the streets sooner, but it would send the message that the United States government lacks the will or is not serious about combatting drug crimes." This letter also asserts that "lower mandatory minimum sentences mean increased crime and more victims."
Critically, the SSA changes federal drugs sentencing laws significantly more than the FSA: the SSA cuts the minimum prison terms for all drug offenses rather than just increasing the amount of one drug needed to trigger existing mandatory prison terms as did the FSA. Consequently, one can have a principled basis to have supported the FSA's reduction of crack sentences (as did nearly every member of Congress when the FSA passed) and to now oppose the SSA's proposed reduction of all federal drug sentences. However, back in 2010, Senator Sessions recognized and vocally stated that reducing some federal drug sentences would actually "strengthen our justice system" by helping to "achieve needed fairness without impeding our ability to combat drug violence and protect victims." I believe (like a majority of the Senate Judiciary Committee) that the SSA would likewise "strengthen our justice system," but Senator Sessions now seem to think it will "mean increased crime and more victims."
Some prior posts about the SSA and debates over federal sentencing reform:
- Smarter Sentencing Act passes Senate Judiciary Committee by 13-5 vote
- Are "hundreds of career prosecutors" (or mainly just Bill Otis) now in "open revolt" over AG Holder's support for the Smarter Sentencing Act?
- Significant collection of significant former federal prosecutors write to Senators to oppose SSA
- Forecasting the uncertain present and future of federal legislative sentencing reform
- House Judiciary Chair suggests Smarter Sentencing Act still facing uphill battle on the Hill
- Effective Heritage analysis of federal MMs and statutory reform proposals
- Another notable letter expressing opposition to SSA ... on US Senate letterhead
May 14, 2014 at 10:46 AM | Permalink
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Crack sentences had been uniquely enhanced due to the particular epidemic.
The problem had receded by 2010, so Sessions supported the specific FSA modification.
Though heroin use and deaths are surging, it has not been similarly enhanced --nor has another drug--
so the support of Sessions for the broad SSA modifications is not correspondingly warranted.
Posted by: Adamakis | May 14, 2014 11:11:51 AM
Fair distinction, Adamakis, but what if the misallocation of federal resources in this arena in part accounts for why heroin use and deaths are surging? Something is not working in our current efforts to "combat drug violence and protect victims," and so is it not possible to reasonably think that another reform to our long-criticized mandatory minimum federal drug sentencing scheme would further "strengthen our justice system"?
The core concern is the one-way ratchet philosophy for toughness reflected in this letter. If/whenever crime goes down, the tough-and-tougher crowd says (perhaps inaccurately) "see, toughness works better than any possible alternative." If/whenever crime goes up, the tough and tougher crowd says (perhaps inaccurately) "how can we even consider a different approach now, we need to be tougher still."
Posted by: Doug B. | May 14, 2014 12:11:31 PM
Interestingly, the increase in heroin has been reported as attributable to the surge in prescription drug abuse. People start on oxy and the like, but switch to heroin due to price and easier acquisition. Increasing penalties for heroin shuts the barn door a bit too late. Controlled substance prescription databases in some states have been an effective tool in reducing the number of people able to improperly receive scrips for opiates. Policing pill mills and tracking prescriptions deals with the problem on the front end, which is always the best place to start.
Posted by: defendergirl | May 14, 2014 12:25:39 PM
Sessions' flipflop sounds like an episode of "House of Cards."
Posted by: one | May 14, 2014 12:32:33 PM
"How do we reconcile Senator Jeff Sessions' vocal support for the FSA and strong opposition to the SSA?"
Because they are different, that's how. FSA was narrowly tailored AND included some sentencing enhancement provisions, such as the "affinity" enhancement.
SSA cuts a wider swath and doesn't have anything for a "tough on crime" politician to tout.
Posted by: Wayne-O | May 14, 2014 12:44:37 PM
Law enforcement and other interests have lobbied so aggressively against pain medication many patients are denied medication. Physicians and pharmacists are no longer in charge of medical decisions. Of course people become addicted to drugs including alcohol, but it is a relatively static and steady % of the population.
An illegal drug, heroin, has replaced perscription drugs that have become impossible to get. This should be a revelation to those who think that making a substance illegal will make it difficult to acquire. The public is lead to believe that once a heroin addict - always a heroin addict. Actually only those with a propensity to addiction will become addicted - you can choose the drug or substance be it legal or illegal.
Yesterday Senator Rob Portman made a speech urging the end to the War on Drugs and over incarceration. It seems to me that it was strategically timed and the topic was calcuated. https://www.buzzfeed.com/evanmcsan/stop-the-war-on-drugs-says-top-republican
Posted by: beth | May 14, 2014 1:18:31 PM
and just what the hell is an "affinity" enhancement! maybe we can apply it to lieing govt fucktards as well.
Posted by: rodsmith | May 14, 2014 1:42:54 PM
Sessios needs to orders 2 pizzas, one for each face.
Talking like a high level conceptetually vague g-man, that has a paper @sshole.
Posted by: MidWestGuy | May 14, 2014 1:59:04 PM
Exactly, Wayne-O. This is not that hard. At least to my simple mind.
Posted by: Zachary B. | May 14, 2014 3:15:23 PM
Wayne-O: the version of the SSA that came out of the Judiciary Committee does, in fact, have a few tough-on-crime new mandatories that got added via Grassley amendments. In addition, the SSA makes the FSA retroactive; if the FSA truly did "strengthen our justice system," then this FSA part of the SSA should strengthen it even more.
Key point: I agree that the FSA was more modest and that the SSA is a bigger reform. But the FSA functionally lowered mandatory minimum sentences for crack offenses (and also ordered the USSC to lower crack guidelines for all offenses). If Senator Sessions really believes, as the new letter his signed now says, that "lower mandatory minimum sentences mean increased crime and more victims," why was he supportive of lower crack MMs in 2010?
To be clear, I think one could sensible believe that the FSA was a good idea in 2010 and that the SSA is a bad idea in 2014. But the extreme rhetoric in this new letter from the Senators makes me wonder and fear that these Senators, and perhaps many others, will always say that the threat and fear of more crime is ever-present and therefore federal drug sentencing reform is never worth the risk.
Posted by: Doug B. | May 14, 2014 4:50:21 PM
Sessions is up for re-election this year.
Posted by: albeed | May 14, 2014 8:48:28 PM
albeed -- that is where I was going. he's a hack with no particular principles. he was defeated for a district judgeship in the 1980s when his history of making neo-segregationist dog-whistle comments came back to bite him. he is unopposed in the repub primary this year (which is the real race in Alabama), but it's not clear he knew he'd be unopposed when he had to decide what position to take on the SSA...
i am curious what political calculations drove this fear-mongering hack to support the FSA in 2010, though.
Posted by: BB | May 16, 2014 2:39:56 PM