At the core of the debate over the role of prosecutors in keeping America safe, some experts and prosecutors believe, is a generational divide.
Attorney General Jeff Sessions represents one view, epitomized by his decision to restore mandatory minimum sentences for drug offenses on Friday – undoing guidance aimed at reducing prison overcrowding.
Mr. Sessions framed the guidelines change as a return to the Justice Department’s proper mission.
“It is a core principle that prosecutors should charge and pursue the most serious, readily provable offense,” he said in the memo. “By definition, the most serious offenses are those that carry the most substantial guidelines sentence, including mandatory minimum sentences.”
On the other side is a different breed of often younger prosecutors, who believe that a more nuanced approach is needed, especially regarding nonviolent drug offenses. Under former President Barack Obama, that view took hold more broadly, inspiring bipartisan reform efforts even in red states like Georgia. Take Texas Harris County District Attorney, Kim Ogg, who along with Houston city officials, said this year that most marijuana cases would no longer be subject to arrest or prosecution. Instead, offenders would pay a fine and enter a diversion program.
“At 107,000 cases over the last 10 years, we have spent in excess of $250 million dollars collectively prosecuting a crime that has produced no tangible evidence of improved public safety,” Ms. Ogg said in February. “[T]he collateral damage to our workforce is immeasurable ... we have disqualified, unnecessarily, thousands of people from greater job, housing, and education opportunities by giving them a criminal record for what is in effect a minor law violation.”
This shift in thought has been crystallizing in recent years, all around the country – including within the ranks of prosecutors and conservative lawmakers. The deeper debate – especially over how to prosecute nonviolent drug offenses – comes amid troubling spikes in violence in small numbers of cities from Los Angeles to Baltimore, from Chicago to Memphis. It also comes after multiple studies that show disproportionate penalties for minorities caught in the criminal justice system.
However, it runs in direct contrast to the direction Sessions appears to be taking as America’s top law-enforcement official. While his directive may only affect those tried in federal courts, as opposed to the much larger state system, it illustrates a broader conflict pervading the debate over how the justice system should operate.
“Sessions and the US attorney’s office are going backward in the direction that we came from, which is kind of sad,” says Robert James, a former Dekalb County district attorney, who is now in private practice. During his six years as the Dekalb County D.A., he spearheaded the county’s Anti-Recidivism Court, where participants, ages 17 to 25, take part in an intensive one-year life skills program, and where all charges are dropped upon graduation. At the same time, he led an anti-gang task force that prosecuted national gang figures trying to consolidate smaller youth gangs in the county.
The call for a harder line
Other former prosecutors, however, think Sessions is right to take a harder line.
“During the era of a criminal justice system with mandatory minimum sentencing, the crime rate plummeted,” says Bill Otis, a former attorney in the US Attorney’s Office for the Eastern District of Virginia.
“There are thousands of people, if not millions of people, who did not become crime victims” because of tougher policies, continues Mr. Otis, now a professor at Georgetown University in Washington. “An enormous amount of money was saved and an even bigger amount of human suffering averted because of the crimes an incarcerated inmate wasn’t able to commit… Others say we should give people a second chance…and [I] can’t disagree with that, but you also have to ask, a second chance to do what?”
Sessions himself referenced his experience as a prosecutor in Alabama in the 1980s soon after being confirmed as attorney general, in a speech that seemingly previewed his tough-on-crime approach. “As someone who lived through that dark time in our history,” he said, “I can assure you: We do not want to go back to those days.”
Coming from anyone who has worked on the front lines of the violent crime epidemic of the 1980s, that point of view is understandable, says John Pfaff, a criminologist at Fordham University who has researched state prosecutors.
“They saw what the failure to respond aggressively in the ’70s led to, so they’re skittish about going to what they saw as soft approaches,” he adds.
But with violent crime only having increased for two years, and still hovering near historic lows, he thinks it is too early to declare a trend, not to mention a punitive response to it. “We shouldn’t start resorting to brute force tactics,” Professor Pfaff says. “At this point we should try to be more sophisticated and more careful in how we approach it.”
Otis says that the two shouldn’t be mutually exclusive. While he supports the move back to the tougher sentencing guidelines, he thinks it should be accompanied by programs that can help inmates succeed once they’re released.
While critics have decried a return to mandatory minimum sentences, legal experts say they don't question the motives of those who seek that return. “This is not a cynical, made-up set of reasons,” says Ronald Wright, a professor at the Wake Forest University School of Law. “The people who pursue this strategy are sincere and well-intentioned.”
But the proportion of people who share Sessions’ views in the prosecutorial community has been shrinking, Professor Wright says.
“Experience has given us a lot more information about how huge prison systems work and don’t work,” he adds. “So the number of prosecutors who embrace prison as central to our response, that number has gone down.”
The view from Lakewood
Some of the reasons for that can be seen in neighborhoods like Lakewood in Atlanta.
Taking a break at a ramshackle garage to pet a pit bull, Tre Burse says he’s fully aware of potential for violent crime. In fact, his own brother is scheduled to get out of state prison this week, for car theft.
But Mr. Burse and his buddies – Mike Edge and Ronald Walters – scoff at Sessions’s order, which will affect about 10 percent of all criminal cases in the US.
What Lakewood needs isn’t less prosecutorial discretion and more prison time, they agree, but more effective punishment and increased opportunity. “Locking everybody up for everything didn't work and it doesn't work,” says Mr. Edge.
Violent crime began decreasing in the 1990s after prosecutors began pursuing longer sentences, but more recent empirical analysis suggests that higher incarceration rates were at most a minor contributor to the decline. A landmark 2012 report from the National Academy of Sciences concluded that increased incarceration rates “on balance” had a “modest” effect, while other research has shown that long prison sentences can lead to increased recidivism and cascading negative consequences on an offender's family and community.
Since 2007, 23 states have passed sentencing-reform legislation, according to The Pew Charitable Trusts. Some of this legislation includes revisions to mandatory minimums, and the changes do not appear to have negatively affected public safety.
In Georgia, for example, Republican Gov. Nathan Deal has introduced a slew of criminal justice reforms, including withholding salary raises for prosecutors in counties until they establish local drug and mental health courts to help struggling Georgians avoid jail time. Those reforms may have helped Burse’s brother after prosecutors decided not to attach potential charges for an earlier robbery committed separately by his friends.
As a result of such discretion, prison populations have dropped in the state. In Dekalb County, even as the per capita crime rate continued to drop last year, county officials raised concern about an uptick in violent crime, including armed robbery and murder.
Mr. James, who lost his reelection bid in November, is concerned that Sessions’ position could stall reforms in some states, and could empower some local prosecutors to stop taking extenuating factors into consideration.
“You can talk to district attorneys in Chicago and Baltimore, and they will tell you that you can’t just go in and lock everybody up and expect the neighborhood to be better,” he says. “Yes, you have to be tough when required. But you have to also understand that criminal justice can do more harm than good. I saw it myself when I was growing up [during the height of the war on drugs]. I I have friends who have been in prison. You lock these young men up for low-level offenses ... and what ends up happening is they get caught up in a cycle of crime, they’re warehoused, and when they’re cut from the warehouse they return home with a scarlet letter ‘F,’ for felony, on them....
“We’ve got 30 to 40 years of history, of precedent, that says it’s flat-out not true” that putting lots of people in prison for a long time solves drug and crime problems, he adds. “If that were the case, then these neighborhoods would have been safe a long time ago.”