Jeff Sessions is not fighting a “War on Drugs”: Discretion is neccessary when alleging mandatory minimums.
Jeff Sessions is our Attorney General (head prosecutor, appointed by President Trump), an important position within the executive branch of our US government. Part of his job is to decide charging policies. The charging policies he has recently decided to implement undermines the roll of the judiciary, another branch of our government. Our three branches (executive, judicial and legislative) should act to balance each other out. But Jeff Sessions' change in charging policy is yet another way our executive branch has demonstrated a will to erode that balance in favor of the executive branch.
Typically, when an arresting agency goes to a prosecutor with evidence on a case, that local prosecutor decides who to charge and what to charge. In federal court, the local prosecutors have used that discretion in charging. Jeff Sessions has told them they can no longer use that discretion.
And Sessions has justified his actions by saying that stricter implementation of mandatory minimum sentences under 21 U.S.C. § 841constitutes a war on drugs. But it does not. What it does do is to increase mandatory prison time. It hamstrings judges by reqiring them to issue sentences that the judges may perceive to be unjustifiably long.
So what are we talking about with mandatory minimum sentences? When certain crimes are committed, federal sentencing guidelines can apply to assure that the defendant is incarcerated for at least a certain amount of time. Mostly, we are talking about drug charges. Like for marijuana, crimes involving drug possession/transportation/distribution where the quantities are over 100 kilograms (220.5 pounds) or 1,0000 kilograms (2,205 pounds), the mandatory minimum time is 5 and 10 years respectively.
You may be saying to yourself that 220 pounds is a lot of marijuana: five years makes sense. It does sometimes, but not most times.
Take, for example, a case where someone from another country decides to come into the United States illegally (maybe their spouse and children live here or they need to earn money for necessary medical treatment for a family member in Mexico), and they do not have the $8,000 crossing fee charged by the gangs controlling the US-Mexican border. They can agree to backpack approximately 50 pounds (around 22 kilograms) of marijuana for 3-5 days across the desert for that gang in lieu of paying the fee. Obviously, the person should decide to not violate any US law and should decide to not enter the country illegally. But if they decide to come in anyway, and to backpack the marijuana, they play no part in deciding where the marijuana comes from, what route will be taken across the desert, the size or the group or the destination. They are referred to as a “mule.”
Prosecutors know that “mules” are not drug dealers and have no information regarding the illegal organization who arranged their crossing with the backpacks. Prosecutors generally decide to not charge these people with an indictment that calls for a minimum of 5 or 10 years because doing so would be nonsense.
Remember the minimum sentence of 5 years for possession of 100 kilograms or more? Mandatory minimum sentences would apply to backpacking groups of 5 or more “mules”, but would not apply to smaller groups. Since the backpackers do not pick the size of the group, or have any ownership of the marijuana, application of a mandatory minimum sentence in this circumstance is unjustifiably punitive.
The people who pay the price on Sessions’ change in policy are the backpackers, not the owners of the marijuana. Application of a mandatory minimum in this circumstance does not qualify as a “war on drugs.” It has no effect on the real drug dealers.
Taking away the prosecutor’s discretion leads to further problems. First, as explained above, it erodes constitutional protections by taking away the judge’s discretion at sentencing. A judge who sentences hundreds of backpackers every year knows what a sentence should be for each defendant and will apply the guidelines as he/she sees fit. Second, it ensures to separate children from their parents for a very long time. If parents serve a shorter sentence, their children can see them sooner in their country of origin. Third, it is very costly ($32,000/year) to incarcerate federal convicts. And finally, while the fear of being caught committing a crime is a deterrent, imposition of a longer sentence is not.
Discretion about when and how to apply mandatory minimum sentences should rest with the prosecutor on a case, not with the Attorney General. This recent change in charging policy takes away from the roll of the judiciary, is unneccessarily costly, provides no additional deterent and is harmful to families. It demonstrates how power-hungry our big-government executive administration has become.