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September 19, 2017

Pushing back on criticisms of AG Sessions returning Justice Department to "failed mindset of its past"

In this post last week, I noted the National Review commentary authored by two former US Attorneys which focused on the Sessions charging/sentencing memo to complain that "Attorney General Jeff Sessions has returned the Justice Department to the failed mindset of its past."  I now have just noticed that Andrew McCarthy has penned this lengthy response at National Review under the headline "On Criminal Justice, Sessions Is Returning DOJ to the Rule of Law."  Here is an excerpt:

The authors lament that Sessions has reinstituted guidelines requiring prosecutors “to charge the most serious offenses and ask for the lengthiest prison sentences.” This, the authors insist, is a “one-size-fits-all policy” that “doesn’t work.” It marks a return to the supposedly “ineffective and damaging criminal-justice policies that were imposed in 2003,” upsetting the “bipartisan consensus” for “criminal-justice reform” that has supposedly seized “today’s America.”

This is so wrongheaded, it’s tough to decide where to begin.  In reality, what Sessions has done is return the Justice Department to the traditional guidance articulated nearly four decades ago by President Carter’s highly regarded attorney general, Benjamin Civiletti (and memorialized in the U.S. Attorney’s Manual).  It instructs prosecutors to charge the most serious, readily provable offense under the circumstances. Doesn’t work? This directive, in effect with little variation until the Obama years, is one of several factors that contributed to historic decreases in crime. When bad guys are prosecuted and incarcerated, they are not preying on our communities.

The thrust of the policy Sessions has revived is respect for the Constitution’s bedrock separation-of-powers principle. It requires faithful execution of laws enacted by Congress.... Absent this Justice Department directive that prosecutors must charge the most serious, readily provable offense, the executive branch becomes a law unto itself.  Bending congressional statutes to the executive’s policy preferences was the Obama approach to governance, so we should not be surprised that a pair of his appointed prosecutors see it as a model for criminal enforcement, too.  But it is not enforcement of the law.  It is executive imperialism....

Criminal statutes can be modified by legislation, which reflects the judgment of the people’s representatives.  The fact that they have not been, notwithstanding the purported “consensus” for “reform,” suggests that the public is not convinced of the need for such modification — or, perhaps, that our representatives grasp the need for a check on the judges. Unable to change the law, the “reformers” are reduced to arguing that justice happens only when prosecutors ignore the law.  If you’re Jeff Sessions and you say, “No, you know, I think we’ll have them follow the law,” you’re a Neanderthal....

Vance and Stewart have a point when they object to Attorney General Sessions’s unfortunate fondness for what they call “adoptive forfeiture policies.”  As we at National Review have contended (as has Justice Clarence Thomas, Kevin Williamson reminds us), civil asset forfeitures are property seizures without due process of law.  A federal spoils system incentivizes police to grab with both hands. Regardless of their effectiveness against drug lords, such forfeitures should be halted — the police should be required to proceed by criminal forfeiture and prosecution, with the due-process safeguards that entails. But that is because civil forfeitures offend the Constitution, not because they feed a left-wing narrative about fractured police–community relations.

Attorney General Sessions is enforcing the law, and doing so within a noble Justice Department tradition of giving force to Congress’s expression of the public will.  He is not altering the law by executive fiat, the preference of President Obama, Attorneys General Holder and Lynch, Professor Vance, Mr. Stewart, and the bipartisan minority they portray as a “consensus.”

There is a great deal I don’t like about the legal system either.  Statist government has enacted far too many laws, such that the federal government has criminalized too much of what used to be the province of state regulation — or unregulated private behavior.  The drug laws do have severe penalties and may work injustice in some cases — although fewer than Vance and Stewart suggest: Though the hands of federal judges are tied by mandatory minimums, they are not bound to follow advisory sentencing guidelines or prosecutorial recommendations.  I would certainly be open to mitigating penalties in exchange for thinning out the federal penal code and transferring areas of enforcement responsibility back to the states.  The point, however, is that this has to be done by legislation, not by executive autocrats under a stealthy distortion of prosecutorial discretion.

If Professor Vance and Mr. Stewart are right that we are in a new era, if the public has truly been won over to the notion that incarcerating criminals is counterproductive, the next step is very simple: Pass laws that amend the penal code.  In the meantime, the Justice Department’s job is to enforce the laws we have.  As Attorney General Sessions recognizes, that means charging the most serious, readily provable offense.

There is more to this commentary, and it merits a full read.  I have emphasized the points about the rule of law and the distinct roles of the distinct branches because it stands as the most conceptually principled defense of the Sessions Memo on prosecutorial policies.  At the same time, this defense lack a bit of nuance in failing to acknowledge that a large measure of congressional dysfunction, rather than the obvious will of the people, is precluding amendments to the federal penal code.

In red and blue states nationwide for nearly a decade, in various initiative votes from California to Oklahoma and from Alaska to Florida, the American people and their representative have been amending penal codes to be less harsh in many ways (especially to nonviolent offenders and marijuana users).  But very little similar work has gotten done in Congress largely because leadership will not even allow reform bills to come up for a full vote.  There are good reasons to think we could and would get many amendments to the federal penal code if up-or-down votes were allowed on various leading reform proposals --- e.g., the GOP-controlled Senate Judiciary Committee voted 75% in support of a massive sentencing reform bill in October 2015.  In light of the reality that significant federal sentencing reform seems to gets significant majority support when it gets a vote, one cannot quite say that full enforcement of existing federal criminal laws is fully compliant with the will of the people.

September 19, 2017 at 09:00 AM | Permalink

Comments

Exactly right, Doug. In fact I'd say it lacks more than "a bit of nuance." This piece is so disingenuous that, in it's author's words, it's tough to decide where to begin. To hold up the failure of Congress to pass comprehensive (or even any) justice reform as evidence of lack of consensus is either woefully naive or intentionally dishonest. As you say, the state-level evidence undermines his thesis that the "will of the people" is not on the side of reform. Not to mention the fact that Congress's inability to pass meaningful legislation on this issue boils down to a few people -- one of whom, incidentally, is Jeff Sessions. To argue that Sessions is returning the DOJ to "the rule of law" and simultaneously that there's no "consensus" for reform because a few people like Jeff Sessions stopped it is such transparent bullshit.

Posted by: Ain't Nick | Sep 19, 2017 11:00:33 AM

Ain't. Same pro-criminal false propaganda. Before you get any credibility, we need one thing. The home address. We are going to place all the criminals you want released in the houses surrounding yours. We will seize them under Kelo, and put up to 8 criminals in each house around yours, without approval by the zoning board. If you are white, you are a racist who wants to dump these toxic criminals onto minority neighborhoods, so you can get a little more job security. If you are black, your betrayal of black crime victims is an abomination.

Posted by: David Behar | Sep 19, 2017 2:31:13 PM

You are so tiresome, David. I don't know how Doug tolerates you on this board, but he's a better man than I.

Posted by: Ain't Nick | Sep 20, 2017 11:02:10 AM

Argument also lacks "nuance" in failing to acknowledge that the exercise of prosecutorial discretion is baked into the system. Hard to imagine a system without this and hard to argue Congress is unaware of it. Also hard to argue Congress mandates exercise of discretion in a particular way by passing a harsh statute without repealing more lenient ones.

Posted by: iggybosh | Sep 24, 2017 7:00:52 AM

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