Sessions’ Tough Sentencing Guidance Could Negatively Impact the Federal Budget
Policy + Politics

Sessions’ Tough Sentencing Guidance Could Negatively Impact the Federal Budget

Aaron Bernstein

The announcement Friday morning that Attorney General Jeff Sessions has rescinded guidance issued during the Obama administration that sought to reduce the number of non-violent drug offenders who wind up in prison will have an impact that extends beyond the bounds of law enforcement and into the arena of the federal budget.

It’s common knowledge that the United States incarcerates more of its citizens than any other country in the world, but less well understood is just how expensive it is to keep millions of people behind bars for decades at a time. Experts estimate that state and federal governments spend $80 billion every year on “corrections” facilities and the infrastructure supporting them. The language in a memo Sessions circulated to US Attorneys across the country Friday morning is certain to push that figure even higher.

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“It is a core principle that prosecutors should charge and pursue the most serious, readily provable offense,” Sessions wrote. “By definition, the most serious offenses are those that carry the most substantial guidelines sentence, including mandatory minimum sentences.”

Under the Obama administration, former attorney general Eric Holder issued guidance that, among other things, recommended that in some cases prosecutors omit certain details from their charging documents -- such as the amounts of drugs recovered -- to avoid triggering mandatory minimum sentencing requirements that years of tough-on-crime laws imposed on federal judges.

Sessions specifically did away with that practice Friday, writing, “prosecutors must disclose to the sentencing court all facts that impact the sentencing guidelines or mandatory minimum sentences.”

In the memo, he described his policy as “moral and just.”

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Sessions also did away with guidance from Holder that had put an end to the practice known as an “851 enhancement” to a criminal charge in order to pressure a defendant to plead guilty to a lesser charge.

Under 21 U.S.C. § 851, prosecutors can request a harsher sentence for some federal crimes if they can demonstrate that the defendant has prior convictions that suggest a tendency toward recidivism. By the time Holder took office, there was a strong preference among federal prosecutors to seek guilty pleas through plea bargaining rather than incurring the expense of a criminal trial.

Adding an 851 enhancement to charging documents significantly raises the stakes for defendants by sharply increasing the jail time they face if found guilty. Critics said that it could lead to innocent people pleading guilty to lesser criminal charges out of fear of excessively long prison sentences if they could not prove their innocence.

By allowing prosecutors to use the greatest possible leverage to extract guilty pleas from criminal defendants, one could argue that Sessions’ new guidelines will save the government on court costs. But in reality, the savings would be minimal, because about 97 percent of federal convictions and 94 percent of state convictions are already the result of plea deals struck out of court.

On the other hand, of course, empowering prosecutors to pressure defendants into accepting less lenient plea deals that they might have agreed to without an 851 enhancement could result in more people spending more years in jail at taxpayer expense.

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The Sessions memo indicates that the Trump administration plans to move in a direction opposite to that of a coalition of conservative and liberal lawmakers who have been advocating for sentencing reform in recent years.

Sessions’ fellow Republican, Sen. Mike Lee of Utah, took note of the new guidelines and “subtweeted” his former Senate colleague on Friday.

Last year, the Congressional Budget Office reviewed the impact of the proposed Sentencing Reform and Corrections Act, which reduced mandatory minimum sentences, made the infamous “three strikes” rule that sent low-level felons to prison for life somewhat less draconian, and offered other reforms that would have resulted in net spending by the Justice Department on corrections by $722 million over 10 years.

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The change in policy from the Trump administration is also likely to annoy some major Republicans donors. The industrialist Koch brothers, for example, who helped support Trump’s candidacy in the general election, are strong advocates of sentencing and criminal justice reform.

And there is some evidence that the fiscal impact of incarcerating huge numbers of Americans might be much larger than expected.

Scholars who research the criminal justice system and corrections policies argue that the corrections system as a whole -- not just the federal system, but state prisons, municipal and county jails, immigrant detention centers and more -- cost the country as much as ten times more than governmental budgets show.

In a study published last October, a group of researchers from Washington University in St. Louis explained, “This is because corrections spending ignores costs borne by incarcerated persons, families, children, and communities. Examples of these social costs are the foregone wages of incarcerated persons, increased infant mortality, and increased criminality of children with incarcerated parents. While these costs do not appear on government budgets, they reduce the aggregate welfare of society and should be considered when creating public policy.”