Pivoting away from Obama-era priorities, attorney general sends memo to US attorneys as experts warn that ‘focusing on drugs does not make us safer’

The attorney general, Jeff Sessions, is advising the federal prosecutors under his authority across the US to re-intensify the nation’s drug war as part of a Department of Justice initiative to target violent crime. Citing a 10.8% increase in the number of murders nationwide, and a decline in federal prosecution for violent crime, Sessions has issued a memo advising US attorneys “to employ the full complement of federal laws to address the problem of violent crime in your district”, including the use of prosecutions under the Controlled Substances Act.

The move mirrors several other hard pivots away from the priorities of the Obama-era DoJ and towards the hardline “tough on crime” rhetoric that Trump and Sessions have promoted. In recent weeks, Sessions has stated that his DoJ will roll back investigations into potential civil rights violations by police departments, and has reversed an order from Loretta Lynch’s DoJ to phase out the use of private prisons in the federal corrections system, painting a jarring picture of regression to reform-minded criminal justice advocates.

'Gun for hire': how Jeff Sessions used his prosecuting power to target Democrats Read more

“We absolutely need to focus on the most violent offenders. But Sessions’ aggressive stance on crime, based on misleading statistics, shows we could be headed toward policies that don’t target the problem, such as another ‘war on drugs’,” said Inimai Chettiar, director of the Brennan Center’s justice program. “Research shows focusing on drug crimes does not make us safer. This was a major factor in making the United States the world’s number one jailer, and we should not repeat the mistakes of the past.”

Those mistakes, as Chettiar describes them, are part of what the former attorney general Eric Holder was trying to address when he issued a 2010 memorandum that encouraged prosecutors to use discretion in deciding when to file charges. This included not pursuing cases where “no substantial Federal interest” would be served, or where “there is an adequate non-criminal alternative to prosecution”, for example a program focused on rehabilitation.

Those mistakes were also in play when Holder issued another memorandum to federal prosecutors advising them to avert mandatory minimum sentences where unnecessary, noting that “in some cases, mandatory minimum … statutes have resulted in unduly harsh sentences and perceived or actual disparities” in the criminal justice system.

It’s difficult to assess exactly what impact Sessions’ memo will have. On the one hand, while it does not directly reference the “Holder Memo”, it does appear to be a direct repudiation of Holder and Lynch’s priorities, which recognized mass incarceration as an undesirable criminal justice outcome, in favor of more punitive, one-size-fits all answers.

“I fear we are seeing the triumph of ideology over evidence,” said Kevin Ring, president of Families Against Mandatory Minimums. “This approach will undoubtedly be tough on some criminals, but it will not be tough on crime.”

On the other hand, what the memo literally suggests, that prosecutors use the tools at their disposal to prosecute violent crime, was never really in question. Both of Holder’s memos encouraged prosecutors to be less punitive only for non-violent crime.

“This is absolutely nothing new. The memo says USAOs ‘may’ be doing this already. We know for a fact that they are already doing this,” said Roy L Austin Jr, the former deputy assistant to the president for the Office of Urban Affairs, Justice and Opportunity.

The effects of the memo may play out in very subtle ways, according to the Fordham law professor John Pfaff, for example, giving local prosecutors more leverage in plea negotiations with a “tough on crime” federal prosecutor waiting in the wings who could threaten a harsher sentence. “For cases that trigger federal jurisdiction – generally something involving drugs or illegal firearms – local prosecutors could threaten to hand a local case over to the feds to get a faster, and more favorable, plea deal at the local level,” Pfaff said.

But no matter the actual impact of the Sessions memo, it signals a shift in the attorney general’s expectations of his representatives, and a view of crime that seems to focus only on parts of the data.

2015 saw the nation’s murder rate make its largest one-year jump in 43 years. But despite the spike, overall violent crime rates remain near all-time historic lows and are nowhere near those seen during the much more violent late 1980s and early 1990s.

“You lost 50lb. You gained back a couple. You’re not fat,” is how Jeffrey Butts described the historical context to the Guardian last year. Butts, the director of the Research & Evaluation Center at the John Jay College of Criminal Justice, added, “That doesn’t mean you shouldn’t look at your behavior, because the trend is not good.”

An example of Sessions’ view was on display last month when, in a speech to a gathering of state attorneys general, he abandoned prepared remarks that addressed the historical context of crime for an off-the-cuff speech.

“Crime rates in the United States remain near historic lows,” Sessions was scripted to remark. “We have won great victories against crime in America.”

But instead, Sessions focused his entire address on doom and gloom, expressing near certainty that the spike in crime was not a “blip” but that it “represented the beginning of the trend”.

Criminologists say this prediction of a long-term crime increase has “no evidence” to support it.

“I’ve got a nice speech here, but maybe we can just chat,” Sessions said before he began.

Lois Beckett contributed to this report