Law

The Limits of Jeff Sessions' Sentencing Crackdown

States and localities make most of the decisions about who goes to prison and for how long.
Photographer: Sandy Huffaker/Getty Images

On Friday, Attorney General Jeff Sessions issued new charging and sentencing guidelines for federal prosecutors that direct them to "charge and pursue the most serious, readily provable offense." The move was greeted with dismay from criminal-justice reformers in both major political parties. Complained Republican U.S. Senator Rand Paul:

Mandatory minimum sentences have unfairly and disproportionately incarcerated too many minorities for too long. Attorney General Sessions’ new policy will accentuate that injustice. Instead, we should treat our nation’s drug epidemic as a health crisis and less as a "lock 'em up and throw away the key" problem.

Or as Carl Hulse of the New York Times summed up:

Given Mr. Sessions’s long record as a zealous prosecutor and his well-known views on the dangers of drug use, his push to undo Obama-era sentencing policies and ramp up the war on drugs was hardly a surprise. But it was still striking, because it ran so contrary to the growing bipartisan consensus coursing through Washington and many state capitals in recent years -- a view that America was guilty of excessive incarceration and that large prison populations were too costly in tax dollars and the toll on families and communities.

This is a fair summary of the issues at stake. And, just to be clear, I too am of the opinion that the U.S. has been "guilty of excessive incarceration." Among other things, I suspect that the incarceration boom of the past few decades has been a major cause of one of the biggest economic problems facing the country today -- the big rise in the percentage of working-age men who have no connection to the labor force. But before all of us who share such views start gnashing our teeth about the horrors that Jefferson Beauregard Sessions III is inflicting upon our nation, let us pause and examine a chart

Behind Bars

U.S. prison and jail population

Source: Bureau of Justice Statistics

Of the 2.3 million men and women behind bars in the U.S. at the end of 2015, 196,500 -- just 8.7 percent -- were in federal prisons. That's still a lot of people. But it's also a reminder that, in the U.S., criminal justice is mainly a state and local matter, and decisions made at the Justice Department in Washington are of limited impact.

The main drivers of the incarceration boom in the U.S., Fordham University law professor John Pfaff argues in his book "Locked In: The True Causes of Mass Incarceration -- and How to Achieve Real Reform," have been local prosecutors. Initially they were reacting to sharp increases in crime from the 1960s through 1980s, but they kept adding resources and toughening their approach even as crime began to abate in the early 1990s. Then, in the 2000s, some states and counties began toning down the prosecutorial fervor (even as, in many others, things went on as before) well before the Obama administration's policy changes began to have an impact. The overall state and local prison and jail population began to decline in 2009; this didn't happen at the federal level until 2013.

I've cited Pfaff's research repeatedly in previous columns, and I realize that I risk becoming one of those people who has read one book on a topic and think it explains everything. (I promise to read some more books! Any recommendations?) Still, it is clear from the numbers that state and local decisions cumulatively have much more impact on U.S. incarceration rates than federal ones do.

Now it could be that Sessions' move will set a precedent that state and local authorities will follow. But I think it's just as likely that it will increase the resolve of those working to reduce incarceration rates around the country. It could even give new impetus to a bipartisan push for reduced federal sentences in Congress, where it no longer faces the determined opposition of a veteran U.S. senator named Jeff Sessions.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

    To contact the author of this story:
    Justin Fox at justinfox@bloomberg.net

    To contact the editor responsible for this story:
    Brooke Sample at bsample1@bloomberg.net

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