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The Last Thing We Need Is a Fact-Free Attorney General

Our nation’s next top law enforcement official sees an America divided by those who commit crimes and those who are victimized by crimes. The truth is far more complicated.

Published: December 12, 2016
Alabama Senator Jeff Sessions, the man we all presume will be the next Attorney General of the United States, probably has uttered a million public words in his long political career. Some of those words, I suspect, he’d like to have back. And some of those words, I suspect, he’ll proudly stand by when his Senate Judiciary Committee confirmation hearing comes around early next year.
There are some words, however, that he ought to be required to explain before he becomes the nation’s chief law enforcement official. In October 2015, for example, he delivered a speech against the Sentencing Reform and Corrections Act, a bipartisan measure designed to reduce the scope of mandatory minimum sentences for some drug offenses and to give judges more discretion to mete out sentences that are more appropriate to their underlying crimes.
Sessions blasted the measure — a position that eventually helped doom the legislation despite support for it among other Republican lawmakers. Reasonable people obviously disagreed about the wisdom of the sort of sentencing reform contemplated in this legislation. But much of the rhetoric Sessions used to justify his opposition to the bill was untethered to objective fact. Even the title of his speech, “Don’t weaken criminal law in the middle of a crime wave,” ignored uncontroverted research that America is as safe as it has been in decades.
If the vision Sen. Sessions laid out in this speech presages the ways in which he will guide the Justice Department we are in for a period of significant counter-reform in criminal justice. In this world, only those cities where murder rates are rising count in the law-and-order equation; the cities where murder rates continue to fall do not. The same is true of property crimes. In this world, the scourge of marijuana persists — and leads to opioid deaths, even — despite research and real-world experience that suggest otherwise.
In this world, ending the war on drugs, and thus ending criminal incentives for drug trafficking, is beyond comprehension. The plan, instead, is to revitalize that war despite the economic toll we know it takes. And even when the senator addresses the issue of recidivism, a problem on both the federal and state level, he offers a counter-factual narrative. In his world, “we’ve found it’s not possible to somehow impact the psyche of people in prison so that we can consistently reduce the likelihood that they return to crime.”
That’s simply untrue. And, even if it were, consigning drug offenders to longer terms in overcrowded, understaffed federal prisons lacking in effective re-entry and rehabilitative programs, which seems to be the clear direction Sessions intends to take us, hardly is the solution to recidivism. The truth is that there are initiatives and programs that have proven to help reduce recidivism and they essentially all center around the idea of treating prisoners with far more dignity and respect to which they are treated now. Nothing in Sessions’ long history as a prosecutor, or his lock-em-up approach as a senator, suggests he’d be willing or able to adopt new approaches to this problem. 
And then there is this remarkable passage:
How many people do you know that (sic) would rape someone? How many people do you know that (sic) are likely to take a gun and would murder somebody? The more of those that are in jail serving time, the less people are going to get murdered. It’s mathematics.
But it’s not mathematics. And the legislation he was arguing against when he made these remarks had nothing to do with releasing rapists and murderers from federal prisons. The truth is that sentencing reform, and prison reform, began to take hold a decade or so ago not just because of low crime rates but because mass incarceration became so pervasive that it began to impact white, middle class families and not just communities of color. Because the scourge of methamphetamines and heroin hit the heartland, destroying families that had largely missed the crack epidemic a generation earlier. Because conservatives woke up and realized that it was simply too expensive to incarcerate so many people for such long stretches.
What Sessions is saying here, what he is saying throughout his whole speech really, is that America is divided into those who commit crimes and those who are victimized by crimes. But the truth is far more complicated than that; just ask the tens of millions of people, innocent people, whose lives are affected daily by the harsh drug sentencing policies. Just ask the victims of crime themselves, some of whom now are opposed to unduly harsh sentences. Sessions supported as a senator and now presumably will zealously enforce as attorney general. Whether you think these policies worked, or failed, we all should be able to agree that they need to be reformed so that America no longer is the most incarcerated nation on the face of the Earth.
Sessions, a former federal prosecutor who was rejected decades ago for a federal judgeship, surely would agree with the proposition that words matter in the law. Indeed, in his speech, he emphasized the ways in which he believes the Justice Department under President Obama undermined clear statutory language. But if the Democrats who’ve run Justice the past eight years are guilty (like every administration before them) of interpreting statutes in a way that justified their policy choices Sessions is guilty of the even more basic sin of basing policy on false evidence or no evidence at all. The last thing the Justice Department needs in the years to come is an attorney general who implements life-changing policies based on fake news.
The views expressed are the author’s own and not necessarily those of the Brennan Center for Justice.
(Photo: Wikimedia/Gage Skidmore)