Grawert is a counsel in the Justice Program and the John L. Neu Justice Counsel at the Brennan Center for Justice, and co-author of "Crime in 2016: Updated Analysis."
As the Senate Judiciary Committee considers the nomination of Senator Jeff Sessions for Attorney General, it is tempting to see the differences in opinion of the Alabama Republican as typical partisanship. But instead, take the subject of criminal justice. It is a matter central to the role Sen. Sessions would assume—and one on which his colleagues from both parties actually agree there is a dire need for change. And yet here, Sen. Sessions has planted himself firmly, dangerously on the fringe.
We’ve come to understand that the nation incarcerates too many people without a public safety rationale. The United States has less than five percent of the world’s population, but nearly 25 percent of its prisoners. A bipartisan movement for reform has come together, and a key breakthrough seemed within reach last year with the Sentencing Reform and Corrections Act, a bill sponsored by Sens. Chuck Grassley and Mike Lee, Republicans of Iowa and Utah respectively, as well as a broad coalition that included many Democrats and the support of House Speaker Paul Ryan. In a carefully negotiated compromise, the bill would have reduced prison sentences for some lower-level drug offenders, while leaving mandatory minimums for violent crimes intact.
At a time when Democrats and Republicans agree on so few matters, why didn’t this bill even make it to the floor for debate? The short answer is Jeff Sessions and the shadow cast by Donald Trump’s “law and order” campaign.
As Attorney General, Sessions could continue to pare back what halting progress has been made toward reducing the numbers of Americans unnecessarily incarcerated—a goal conservatives, progressives and law enforcement have come to embrace.
Sessions made blocking Grassley’s sentencing reform bill a personal crusade. He falsely branded it a “criminal leniency bill” and claimed any reduction in the prison population would cause crime rates to spiral out of control. Sessions argued it would be “wrong to weaken criminal law in the middle of a crime wave.” But the evidence shows that crime remains at record lows, despite local increases in cities like Chicago, with the nation’s overall crime rate falling for the fourteenth year in a row, according to FBI data. And Sessions made these specious arguments despite assurances from leading police chiefs and prosecutors that the bill wouldn’t increase crime. Twenty-seven states have proved him wrong, simultaneously cutting their prison populations and their crime rates over the last decade.
Rather than dividing the party, GOP leadership let the bill founder. Grassley plans to revive the bill in 2017. But the fact that Sessions torpedoed a modest reform backed by his own party should give all Americans pause.
Sessions’ supporters are quick to claim that this isn’t the whole story—that he has been a friend to criminal justice reform in the past. There is some limited truth to this. In 2010, Sessions co-sponsored the Fair Sentencing Act, which reduced the disparity between sentences for crack and powder cocaine. He also supported the Second Chance Act, which funded reentry programs for former prisoners; but Sessions’ support came late in the game, after he had already stalled the bill for weeks. More recently, he’s been quick to criticize President Obama for commuting the sentences of prisoners serving time under outdated drug laws, arguing the president is playing a “dangerous game” that will “inflict long-term harm on the nation.”
This is a troubling record—and it’s also why we have confirmation hearings.
As Attorney General, Sessions would oversee where and how federal prosecutors use their considerable discretion, helping decide which crimes prosecutors prioritize. He would oversee the federal prison system, and speak with the voice of the nation’s top law enforcement official, giving him a major say in any future reform legislation. With that in mind, Sessions’ Senate colleagues should come to his January 10 hearing prepared to ask tough questions about how he will run his Justice Department. When Sen. Grassley reintroduces his sentencing bill, will Sessions oppose it as Attorney General? Does he plan to reverse former Attorney General Eric Holder’s directives, which asked U.S. Attorneys to reduce unnecessary incarceration when possible? Will he curtail reentry and education programs in prison? Will he halt investigations into troubled police departments, accused of misusing force against communities of color? More than 82% of African American voters believe the criminal justice system treats them unfairly, according to an NBC News exit poll. How does he plan to address this?
Even if confirmed, Sessions isn’t the only person in Washington with influence in this area. Conservatives and law enforcement groups have been working to convince Trump and Vice President-elect Mike Pence that the criminal justice system is “just another failed big government program.” They should redouble their efforts. For all his campaign rhetoric, Trump once supported legalizing marijuana, saying in 1990 “you have to legalize drugs to win that war.” In 2015, Trump told MSNBC that small-time drug use shouldn’t lead to prison. And as governor, Pence championed reforms to improve his state’s criminal justice system, saying that Indiana should be “the best place, once you’ve done your time, to get a second chance.”
If Sessions is confirmed, it won’t break the campaign to end mass incarceration. Efforts can continue at the state and local level, where Republicans and Democrats have worked together on justice reform for a decade. But national leaders set the tone, and backward federal policies rooted in fear-mongering rhetoric rather than evidence will certainly slow the pace of reform.
Sessions criticized Republican leaders for supporting a modest sentencing reform bill. Those same leaders, who now plan to revive the bill, have now all but promised him an easy confirmation as the nation’s next top law enforcement officer. They should reconsider. Sessions’ extremist record on criminal justice is reason enough for the American public and rational politicians to ask tough questions during his hearing next week.