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June 24, 2017

Former DAG Sally Yates makes the case against AG Sessions new federal charging and sentencing policies

Former Deputy Attorney General Sally Yates that this new Washington Post commentary under the headline "Making America scared again won’t make us safer." Here are excerpts:

All across the political spectrum, in red states and blue states, from Sen. John Cornyn (R-Tex.) and the Koch brothers to Sen. Patrick Leahy (D-Vt.) and the American Civil Liberties Union, there is broad consensus that the “lock them all up and throw away the key” approach embodied in mandatory minimum drug sentences is counterproductive, negatively affecting our ability to assure the safety of our communities.

But last month, Attorney General Jeff Sessions rolled back the clock to the 1980s, reinstating the harsh, indiscriminate use of mandatory minimum drug sentences imposed at the height of the crack epidemic.  Sessions attempted to justify his directive in a Post op-ed last weekend, stoking fear by claiming that as a result of then-Attorney General Eric H. Holder Jr.’s Smart on Crime policy, the United States is gripped by a rising epidemic of violent crime that can only be cured by putting more drug offenders in jail for more time.

That argument just isn’t supported by the facts.  Not only are violent crime rates still at historic lows — nearly half of what they were when I became a federal prosecutor in 1989 — but there is also no evidence that the increase in violent crime some cities have experienced is the result of drug offenders not serving enough time in prison.  In fact, a recent study by the bipartisan U.S. Sentencing Commission found that drug defendants with shorter sentences were actually slightly less likely to commit crimes when released than those sentenced under older, more severe penalties.

Contrary to Sessions’s assertions, Smart on Crime focused our limited federal resources on cases that had the greatest impact on our communities — the most dangerous defendants and most complex cases. As a result, prosecutors charged more defendants with murder, assault, gun crimes and robbery than ever before.  And a greater percentage of drug prosecutions targeted kingpins and drug dealers with guns.

During my 27 years at the Justice Department, I prosecuted criminals at the heart of the international drug trade, from high-level narcotics traffickers to violent gang leaders. And I had no hesitation about asking a judge to impose long prison terms in those cases.  But there’s a big difference between a cartel boss and a low-level courier. As the Sentencing Commission found, part of the problem with harsh mandatory-minimum laws passed a generation ago is that they use the weight of the drugs involved in the offense as a proxy for seriousness of the crime — to the exclusion of virtually all other considerations, including the dangerousness of the offender.  Looking back, it’s clear that the mandatory-minimum laws cast too broad a net and, as a result, some low-level defendants are serving far longer sentences than are necessary — 20 years, 30 years, even mandatory life sentences, for nonviolent drug offenses.

Under Smart on Crime, the Justice Department took a more targeted approach, reserving the harshest of those penalties for the most violent and significant drug traffickers and encouraging prosecutors to use their discretion not to seek mandatory minimum sentences for lower-level, nonviolent offenders.  Sessions’s new directive essentially reverses that progress, limiting prosecutors’ ability to use their judgment to ensure the punishment fits the crime....

While there is always room to debate the most effective approach to criminal justice, that debate should be based on facts, not fear. It’s time to move past the campaign-style rhetoric of being “tough” or “soft” on crime. Justice and the safety of our communities depend on it.

Prior recent related posts:

June 24, 2017 at 12:39 PM | Permalink


"As the Sentencing Commission found, part of the problem with harsh mandatory-minimum laws passed a generation ago is that they use the weight of the drugs involved in the offense as a proxy for seriousness of the crime..."

This would be a lot more persuasive if it weren't for the fact that the Sentencing Commission is the world's biggest set of hypocrites. After all, the logic the Commission rejects when it comes to drug offenses is the same logic it uses to support strong sentences for child pornography downloaders. Substitute "age of the victim" for "weight of the drugs". Both are equally foolish ways of looking at the situation.

I predict that in two decades some future Sally Yates will write, ""As the Sentencing Commission found, part of the problem with harsh child pornography laws passed a generation ago is that they use the age of the victim depicted in the offense as a proxy for seriousness of the crime...".

I doubt that prediction will make today's Sally Yates lose one minute of sleep at night. It is always easier to condemn the mistakes of the past, when the people who made those mistakes are dead or retired, then it is to do the difficult work of correcting the evils of the present.

Posted by: Daniel | Jun 24, 2017 5:15:18 PM


I don't see many complaints about how age of the victim is used, the complains I see are about the number of images proxy. And that one seems like it would have made sense in the days before the internet where people had to move physical media around.

Posted by: Soronel Haetir | Jun 24, 2017 10:37:57 PM

A terrific article best read in full.

Posted by: peter | Jun 25, 2017 4:55:15 AM


You are confusing the seriousness of the offender with the seriousness of the offense. Prosecutors tend to use the number of images a defendant possess as a proxy for how "hard core" the offender is under a belief that a person with gigabytes of images poses a greater threat to the public or has contributed more to market demand/supply than a person who downloaded a few videos out of curiosity. That's a debatable stance but it is not the focus of my complaint here. The focus of my ire is on the Sentencing Commission's decision last year to add a sentencing enhancement if the age of the victim depicted was, IIRC, under three based upon a moral intuition such children were especially vulnerable. That speaks to the idea that some offenses are worse for no other reasons than the child's age--it is a form of reverse age discrimination. I assert that this age discrimination makes no more sense logically than discrimination based upon drug weight as a proxy for the seriousness of the offense.

Posted by: Daniel | Jun 25, 2017 9:36:38 AM

I have yet to see a prosecutor use real evidence instead of playing the Jury!

Posted by: LC in Texas | Jun 25, 2017 9:55:01 AM

The correct remedy.


Posted by: David Behar | Jun 25, 2017 11:23:30 AM

I commend Sally for speaking up now, but she was happy to work as a Assistant United States Attorney engaging in the very harsh practices she now describes. She ignored the evidence to secure her position of power, and only then spoke out AFTER it became politically acceptable to do so.

Posted by: defendergirl | Jun 25, 2017 2:21:49 PM

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