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Sen. Sessions’s Mixed Record on Criminal Justice Makes His Confirmation Hearing Critical

His Senate colleagues need to ask probing questions, and Sessions needs to answer.

January 9, 2017

Confirmation hearings are starting for Sen. Jeff Sessions (R-Ala.), Donald Trump’s choice to head the Department of Justice.

Despite a polarizing election season, several committee members, from both parties, enter the hearing with a shared interest in criminal justice reform.

As recently as last year, committee chairman Chuck Grassley (R-Iowa) joined with ranking member Patrick Leahy (D-Vt.), and a broad coalition including committee members John Cornyn (R-Texas), Mike Lee (R-Utah), and Dick Durbin (D-Ill.), to author a bipartisan sentencing reform bill, the Sentencing Reform and Corrections Act (SRCA). That bill would have cut prison sentences for some lower-level drug offenders, while retaining stiff penalties for violent crimes.

Despite broad support, the SRCA never reached the floor for a vote — thanks in-part to Sessions, who joined with Sen. Tom Cotton (R-Ark.) to kill the bill. Republican leaders plan to reinvigorate it this year.

Sessions’s strong relationship with his peers might make it tempting to paper over these differences. But, senators from both parties should come with strong questions about Sessions’s record on these criminal justice topics — starting with the SRCA.

Sentencing Reform

Sessions once supported efforts to fix overly punitive federal sentences. In 2010, he helped pass the Fair Sentencing Act of 2010, which moved toward equalizing penalties for crack and powder cocaine, saying it would “make the criminal justice system more effective and fair.”

Since then, Sessions has emerged as one of the fiercest opponents of further reform. He claimed that the SRCA would drive up crime, despite advice from law enforcement leaders that reform would reduce violent crime, and evidence from 27 states, including Georgia, South Carolina, and Texas, that have simultaneously reduced crime and imprisonment rates.

When his colleagues made sentencing reform a priority, Sessions blocked them.

This week, they should ask a simple question: why?

If 27 states can reduce crime while cutting their prison population, why can’t the federal government achieve the same goal? Police leaders support cutting drug sentences to focus on violent crime. Why does Sessions disagree with their approach? And, is prison really the only tool available to the Justice Department for controlling crime? What other ideas would his Justice Department pursue to punish lower-level offenders?

Police Oversight

President Barack Obama’s Justice Department has investigated abuses of power by local police departments across the country — from Ferguson, Mo., to Baltimore, Md. In several cases, the Department has intervened directly, helping broker deals with local police to reform their practices and address community concerns. These agreements, called “consent decrees,” are then overseen by a federal court to make sure all parties abide by the agreement. In Ferguson, the Justice Department’s consent decree requires the city to reform its use of criminal justice fines, and asks police to be trained to de-escalate from conflict situations and avoid the use of force.

Sessions is skeptical of the need for this oversight, and the government’s role in providing it. At a November 2015 hearing called “The War on Police: How the Federal Government Undermines State and Local Law Enforcement,” Sessions said “protests about police do have the tendency to cause [police] to . . . not walk the streets,” contributing to rising crime. And in 2008, he criticized federal consent decrees as an “end run around the democratic process.”

Federal oversight helps keep police accountable to the communities they serve — and may repair breaches of trust between officers and citizens. If confirmed, Sessions would have the power to pare back or even end these investigations.

The Senate should ask whether he would act on that power. Would his Justice Department continue investigating credible reports of police misconduct? Would he end ongoing consent decree negotiations, such as in Baltimore, where investigators recently uncovered “a pattern of violations of residents’ rights, particularly in poor, predominantly black neighborhoods”?

Drug Crimes & Prosecutorial Discretion

In 2013, the Justice Department directed prosecutors to refrain from seeking mandatory minimum sentences for lower-level drug offenses.

This approach is supported by progressives, conservatives, and even police leaders. According to Koch Industries executive Mark Holden and former New Orleans police superintendent Ronal Serpas, police and prosecutors increasingly support “a data-driven, modern approach to crime — one that targets violent crime while reducing the unnecessary incarceration of low-level offenders. States that have employed these practices have seen crime and incarceration fall together, which preserves resources for law enforcement.”

Sessions, however, has criticized Obama’s Justice Department for pursuing fewer drug cases. He views marijuana as a “very real danger” and “not the kind of thing that ought to be legalized,” saying “good people don’t smoke marijuana.”

“Drug trafficking is by nature a violent crime,” he said at a 2016 hearing, and decreasing drug prosecutions “creates a risk” of higher crime.

As Attorney General, Sessions would be in charge of recommending to prosecutors what crimes to prosecute, how to prioritize them, and what kinds of prison sentences to seek. The Senate should ask him how he would use that power.

Would he direct prosecutors to pursue more drug cases, at the expense of more serious crimes? Would he interfere with drug reform efforts from the states? And if Congress manages to pass sentencing reform — possibly over his objection — would he dilute its effect, by seeking out more drug cases and asking for stiffer penalties in court?

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Sessions’s confirmation hearing represents the Senate’s best chance to find out how he plans to run the Justice Department for the next four years. They should make the most of that chance — especially when it comes to a bipartisan issue like criminal justice reform.