Attorney General Sessions charts course back to long drug sentences

The Trump era of drug enforcement has officially arrived, and it sounds a lot like the old days.

The message came this week in the form of a memo from Attorney General Jeff Sessions to all federal prosecutors: Stop seeking leniency for low-level drug offenders and start seeking the toughest penalties possible.

That's what federal authorities used to do, when the war on drugs fueled the passage of mandatory minimum sentencing laws. But under former President Barack Obama, the Justice Department tried to rein in the use of those statutes, which advocates say were used disproportionately against minorities and led to massive prison overcrowding.

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Jeff Sessions through the years
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Jeff Sessions through the years

U.S. Attorney General Jeff Sessions pauses at a news conference at the Justice Department in Washington, U.S., March 2, 2017.

(REUTERS/Yuri Gripas)

Senator Jeff Sessions of Alabama arrives at Trump Tower for meetings with President-elect Donald Trump works from home November 15, 2016. Making the vital choices for President-elect Donald Trump's White House cabinet has sparked intense infighting, CNN reported Monday, with one source calling it a 'knife fight.' The jobs to be filled include national security positions and West Wing posts, the television news network said, as Trump gathered with transition team members in New York.

(TIMOTHY A. CLARY/AFP/Getty Images)

President-elect Donald Trump greets Senator Jeff Sessions, Trump's picks for attorney general, during a thank you rally in Ladd-Peebles Stadium on December 17, 2016 in Mobile, Alabama. President-elect Trump has been visiting several states that he won, to thank people for their support during the U.S. election.

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Senate Majority Leader Mitch McConnell, R-Ky., right, and Sen. Jeff Sessions, R-Ala., nominee for attorney general, talk near the Ohio Clock after a meeting in the Capitol, November 30, 2016.

(Photo By Tom Williams/CQ Roll Call)

Attorney General-designate, Sen. Jeff Sessions, R-Ala., speaks during a 'USA Thank You Tour 2016' event at the LaddPeebles Stadium in Mobile, AL on Saturday, Dec. 17, 2016.

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Senator Jeff Sessions, attorney general pick for U.S. President-elect Donald Trump, right, listens as Senator Charles 'Chuck' Grassley, a Republican from Iowa, speaks during a meeting in Washington, D.C., U.S, on Tuesday, Nov. 29, 2016. Sessions, the 69-year-old, four-term Alabama Republican is a hard-liner on free trade and immigration, arguing that prospective immigrants don't have constitutional protections.

(Photographer: Andrew Harrer/Bloomberg via Getty Images)

US President-elect Donald Trump (C) talks with Alabama Governor Robert Bentley (2nd L) and US Attorney General nominee Jeff Sessions (L) as he arrives in Mobile, Alabama, for a 'Thank You Tour 2016' rally on December 17, 2016.

(JIM WATSON/AFP/Getty Images)

Mike Pence, 2016 Republican vice presidential nominee, left, and Senator Jeff Sessions, a Republican from Alabama, gesture during a campaign event for Donald Trump, 2016 Republican presidential nominee, not pictured, in Phoenix, Arizona, U.S., on Wednesday, Aug. 31, 2016. Trump returned to form in Phoenix Wednesday night with a nativist immigration plan definitively ruling out legal status for undocumented immigrants, as well as proposing to build a wall on the southern border of the United States and forcing Mexico to cover the cost.

(Photographer: David Paul Morris/Bloomberg via Getty Images)

MADISON, AL - FEBRUARY 28: United States Senator Jeff Sessions, R-Alabama, beomes the first Senator to endorse Donald Trump for President of the United States at Madison City Stadium on February 28, 2016 in Madison, Alabama.

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Sen. Bernie Sanders (I-VT)(L) speaks during a Senate Budget Committee hearing on Capitol Hill, February 3, 2015 in Washington, DC. The committee is hearing testimony Office of Management and Budget Director Shaun Donovan on President Obamas FY2016 budget request. Also pitcured are (L-R), Chairman Michael Enzi (R-WY), Sen. Jeff Sessions (R-AL), Sen. Mike Crapo (R-ID), Sen. Lindsey Graham (R-SC), and Sen. Rob Poertman (R-OH).

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U.S. Sen. Jeff Sessions (R-AL) (2nd L) speaks as Sen. Ted Cruz (R-TX) (L), and Rep. Marsha Blackburn (R-TN) (R) listen during a news conference September 9, 2014 on Capitol Hill in Washington, DC. The legislators discussed on immigration reform during the news conference.

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House Budget Chairman, Paul Ryan, R-Wis., Sen. Jeff Sessions, R-AL., and members of the House Budget Committee during the House Budget Committee's news conference on the 'Introduction of the FY2013 Budget - Pathway to Prosperity.'

(Photo By Douglas Graham/Roll Call)

Sens. Jeff Sessions, R-Ala., left, and Mike Lee, R-Utah, leave the Capitol en route to a news conference to oppose the immigration reform bill in the Senate.

(Photo By Tom Williams/CQ Roll Call)

Italian tenor Andrea Bocelli performs during the National Prayer Breakfast as First Lady Michelle Obama (L), US President Barack Obama (2nd L) and Senator Jeff Sessions (3rd L), R-AL, watch on February 7, 2013 at a hotel in Washington, DC.

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Sen. Jeff Sessions, R-AL., talks with Sen. Patty Murray, D-WA., as they make their way to the Senate policy luncheons through the Senate subway in the U.S. Capitol on September 17, 2013.

(Photo By Douglas Graham/CQ Roll Call)

Sen. Jeff Sessions, R-Ala., is interviewed by the press during the weekly Senate policy luncheons. The Senate vote will this afternoon on Obama's small-business tax relief legislation.

(Photo by Chris Maddaloni/CQ Roll Call)

Sen. Jeff Sessions, R-Ala., speaks at the 'Iran Democratic Transition Conference,' hosted by the Institute of World Politics in Capitol Visitor Center. The conference explored the prospects of political change in Iran.

(Photo By Tom Williams/Roll Call)

US President Barack Obama (C) signs the Fair Sentencing Act in the Oval Office of the White House, on August 3, 2010 in Washington, DC. The law will aim to correct the disparities between crack and powder cocaine sentencing. Also in the picture (L to R); Attorney General Eric Holder, Democratic Senator Patrick Leahy of Vermont, Democratic Representative Bobby Scott of Virginia, Democratic Senator Dick Durbin of Illinois, Republican Senator Jeff Sessions of Alabama, Republican Senator Orrin Hatch of Utah and Democratic Representative Sheila Jackson-Lee of Texas. Previously, people in possession of powder cocaine could carry up to one hundred times more grams than crack offenders and receive the same sentence.

(Photo by Michael Reynolds-Pool/Getty Images)

U.S. Supreme Court nominee Elena Kagan (L) shakes hands with Sen. Jeff Sessions (R-AL) (R), ranking member of the Senate Judiciary Committee, while Senate Judiciary Committee Chairman Sen. Patrick Leahy (D-VT) looks on, after she arrived for the first day of her confirmation hearings on Capitol Hill June 28, 2010 in Washington, DC. Kagan is U.S. President Barack Obama's second Supreme Court nominee since taking office.

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The new co chairman of the Senate Judiciary Committee Senator Jeff Sessions (D-AL) works in his office on Capitol Hill Tuesday morning May 02, 2009. Sen. Sessions speaks to Judiciary Chairman Patrick Leahy (D-VT) before visiting with US Supreme Court nominee Judge Sonia Sotomayor.

(The Washington Post via Getty Images)

US President Barack Obama (3rd-R) and Vice President Joe Biden (3rd-L) meet with Senate Majority Leader Harry Reid (2nd-R) ,D-NV, Minority Leader Mitch McConnell (2nd-L),R-KY, Senate Judiciary Committee Chair Patrick Leahy (R) ,D-VT, and Senate Judiciary Committee Ranking Member Jeff Sessions (L),R-AL, about the upcoming Supreme Court nomination on May 13, 2009 at the White House in Washington, DC.  

(TIM SLOAN/AFP/Getty Images)

Committee Chairman Sen. Patrick Leahy (D-VT) (R) listens as ranking member Sen. Jeff Sessions (R-AL) (L) questions Supreme Court nominee Judge Sonia Sotomayor during the second day of her confirmation hearings July 14, 2009 in Washington, DC. Sotomayor faces a full day of questioning from Senators on the committee today. Sotomayor, an appeals court judge and U.S. President Barack Obama's first Supreme Court nominee, will become the first Hispanic justice on the Supreme Court if confirmed.

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US President George W. Bush (L) listens as Alabama Senator Jeff Sessions (R) speaks during a Republican fundraiser for Sessions at the Arthur R. Outlaw Mobile Convention Center in Mobile, Alabama, 21 June 2007.

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US President George W. Bush (2R) waves as he stands with First Lady Laura Bush (R), Alabama Senator Jeff Sessions (2L) and his wife Mary (L) after a Republican fundraiser for Sessions at the Arthur R. Outlaw Mobile Convention Center in Mobile, Alabama, 21 June 2007.

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Baghdad, IRAQ: US Senators Ben Nelson, D-Nebraska, (L) and Jeff Sessions, R-Alabama, speak to the media after meeting Iraqi Prime Minister Nuri al-Maliki in Baghdad, 28 April 2007. Maliki told a delegation of visiting US lawmakers today that foreign powers should not try to influence the Iraqi political process. He also resisted calls for his Shiite-led government to rehabilitate former members of ousted Sunni dictator Saddam Hussein's regime. Maliki met a group of US congressmen shortly after their chamber voted for a law calling for a timetable for American troop withdrawal from Iraq.

(KHALID MOHAMMED/AFP/Getty Images)

U.S. Senator Jeff Sessions, R-AL, (C) speaks with the media as (L-R) U.S. Senator George Allen (R-VA), U.S. Representative David Dreier (R-CA) and U.S. Representative Paul Ryan (R-WI) listen at the White House after participating in a meeting with U.S. President George W. Bush on March 16, 2006 in Washington, DC. Senators from various states, including U.S. Senator John Kerry (D-MA), participated in a line item veto legislation meeting.

(Photo by Dennis Brack-Pool/Getty Images)

Senate Majority Leader Bill Frist, R-Tenn., and Sen. Jeff Sessions, R-Ala., during a news conference after the Senate took a step Wednesday toward the 'security first' approach to immigration control promoted in the House, paving the way for action on legislation that would require construction of 700 miles of double-layered fencing along segments of the U.S. border with Mexico. Despite Democratic charges that Republicans were moving the bill (HR 6061) to score political points seven weeks before Election Day, the Senate voted 94-0 to limit debate on a motion to proceed to formal consideration of the measure. The bill (HR 6061), which would also authorize a 'virtual fence' of sensors, cameras, unmanned aerial vehicles and other surveillance technology along the entire southwest border, was passed by the House last week. Three more targeted border security and internal immigration enforcement measures are set for House action, possibly as early as Thursday. Frist supported an earlier Senate comprehensive bill that would offer a path to citizenship to millions of illegal immigrants. Sessions did not; he considers that aspect of the bill amnesty.

(Photo by Scott J. Ferrell/Congressional Quarterly/Getty Images)

U.S. Senators Lindsey Graham (R-SC) (L), speaks with U.S. Senator Jeff Sessions (R-AL) during a Judiciary Committee confirmation hearing for Alberto R. Gonzales January 6, 2005 in Washington, DC. U.S. President George W. Bush has nominated Gonzales to be the U.S. Attorney General.

(Photo by Mark Wilson/Getty Images)

Sen. Jeff Sessions, R-Ala., in his office in the Russell Senate Office Building.

(Photo by Scott J. Ferrell/Congressional Quarterly/Getty Images)

Sen. Jeff Sessions, R-Ala., and Senator-elect Elizabeth Dole, R-N.C., talk in the Ohio Clock Corridor during the election meeting for Senate Republican leadership.

(Photo by Scott J. Ferrell/Congressional Quarterly/Getty Images)

Sen. Jeff Sessions at a hearing to examine 'President Clinton's Eleventh Hour Pardons.'

(Photo By Tom Williams/Roll Call/Getty Images)

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For those who'd embraced a bipartisan movement to end harsh sentencing policies, reduce prison costs and focus on rehabilitating drug offenders, the attorney general's directive puts the country in danger of repeating an old mistake.

"It can't be emphasized enough that the direction they're pointing is 180 degrees wrong," said David Alan Sklansky, a former federal prosecutor who now teaches at Stanford Law School.

Related: Attorney General Sessions Orders Tougher Drug Crime Prosecutions

But for prosecutors who bristled at the Obama administration's approach, the Sessions memo is a refreshing return to the times when prosecutors felt empowered to use all their power to prosecute drug dealers and combat drug trafficking.

Mandatory minimum sentences, passed during 1980s, forced judges to impose lengthy prison terms for drug trafficking, a move that contributed to drops in crime but also put a lot more people in prison.

Researchers now say that mass incarceration's impact on the crime rate has ebbed, and that the length of a prison sentence matters less in deterring crime than the likelihood of punishment. And the result is millions of nonviolent ex-offenders — a disproportionate number of whom are black — were essentially locked out of the economy.

During the Obama administration, federal officials tried various ways to chip away at mandatory minimums. One significant step came in 2013 from then-Attorney General Eric Holder. In a series of memos, Holder ordered federal prosecutors to focus on high-level dealers and avoid charging low-level, nonviolent offenders with crimes that carried the stiffest sentences.

Related:'Just Say No': AG Sessions Cites Old School Anti-Drug Motto

Since then, the proportion of federal drug offenders sentenced under mandatory minimum laws has dropped dramatically, mirroring a broader decline of all federal prison sentences. Accordingly, the federal prison population has declined to the lowest point since 2005.

On Friday, Sessions rescinded two key Holder memos — one telling prosecutors to show lenience for low-level nonviolent drug offenders, and a second, from 2014, restricting the use of a law that toughened sentences for repeat offenders.

Any prosecutor who seeks to deviate from the new policy, Sessions said, must get permission from a supervisor, in writing.

Session said his directives "place great confidence in our prosecutors and supervisors to apply them in a thoughtful and disciplined manner, with the goal of achieving just and consistent results in federal cases."

"If you are a drug trafficker, we will not look the other way," Sessions said at a press conference Friday.

Critics said Sessions was limiting prosecutors' discretion to seek punishment they felt fit the crime.

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Former US Attorney General Eric Holder
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Former US Attorney General Eric Holder

Former U.S. Attorney General Eric Holder delivers remarks on the second day of the 2016 Democratic National Convention at Wells Fargo Center on July 26, 2016 in Philadelphia, Pennsylvania. An estimated 50,000 people are expected in Philadelphia, including hundreds of protesters and members of the media. The four-day Democratic National Convention kicked off July 25.

(Photo by Paul Morigi/WireImage)

Attorney General Eric Holder announces he is leaving the Department of Justice while U.S. President Barack Obama looks on.

(WhiteHouse.gov)

U.S. Attorney General Eric Holder arrives to talk to the media about the shooting of two police officers in Ferguson, and to announce pilot cities for DOJ program to build trust between law enforcement and communities they serve, at the Justice Department in Washington March 12, 2015. Holder said on Thursday the shooting of two police officers in Ferguson, Missouri, was a "heinous assault" that threatens reforms under way in the city.

(REUTERS/Yuri Gripas)

U.S. Attorney General Eric Holder speaks at the annual convention of the National Association for the Advancement of Colored People (NAACP) in Orlando July 16, 2013. Holder told the major civil rights convention that controversial "Stand Your Ground" self-defense laws that have been adopted in 30 states should be reconsidered.

(REUTERS/David Manning)

Chicago Mayor Rahm Emanuel (L) shares a laugh with U.S. Attorney General Eric Holder at an event in Chicago, Illinois July 2, 2014.

(REUTERS/Jim Young)

Eric Holder (L) is sworn-in as US Attorney General by US Vice President Joe Biden (R) as Holder's wife, Sharon (C) holds the Bible during ceremonies on February 3, 2009, at the Justice Department in Washington, DC.

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A packed room watches Holder's speech.

(WhiteHouse.gov)

Valerie Jarrett, senior advisor to U.S. President Barack Obama, captures a moment of U.S. Attorney General Eric Holder as Obama mentions Holder's presence at a town-hall meeting with students and Columbia area youth leaders about the importance of community involvement at Benedict College in Columbia, South Carolina March 6, 2015.

(REUTERS/Kevin Lamarque)

Attorney General Eric Holder makes a separated statement on the unrest after the unarmed 18-year-old Michael Brown was shot by a police officer in Ferguson, Missouri, during a major financial fraud announcement press conference August 21, 2014 at the Justice Department in Washington, DC. Holder spoke on the current situation in Ferguson one day after his visit to the town and met with Browns family, saying the investigation of the shooting will be thorough and will be fair, and Department of Justice stands with the people of Ferguson.

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U.S. Attorney General Eric Holder (R) embraces President Barack Obama after the president announced Holder's resignation in the White House State Dining Room in Washington, September 25, 2014.

(REUTERS/Larry Downing)

US Attorney General Eric H. Holder is sworn-in during a hearing of the House Judiciary Committee on Capitol Hill May 15, 2013 in Washington, DC. Holder and other members of the Obama administration are being criticized over reports of the Internal Revenue Services'(IRS) scrutiny of conservative organization's tax exemption requests and the subpoena of two months worth of Associated Press journalists' phone records.

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U.S. Attorney General Eric Holder speaks during a naturalization ceremony at the U.S. Department of Justice May 27, 2013 in Washington, DC. During the event Citizenship and Immigration Services Director Alejandro Mayorkas administered the Oath of Citizenship to approximately 70 new U.S. citizens.

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Former U.S. Attorney General Eric Holder speaks during the second day at the Democratic National Convention in Philadelphia, Pennsylvania, U.S. July 26, 2016.

(REUTERS/Mike Segar)

U.S. Attorney General Eric Holder returns an acknowledgement from President Barack Obama at the Congressional Black Caucus Foundation dinner in Washington September 27, 2014.

(REUTERS/Jonathan Ernst)

U.S. Attorney General Eric Holder arrives at the 46th NAACP Image Awards in Pasadena, California February 6, 2015.

(REUTERS/Danny Moloshok)

Eric Holder (L) is sworn in as U.S. Attorney General by U.S. Vice President Joe Biden (R) at the Justice Department in Washington February 3, 2009. Holder's wife Sharon (C) holds the Bible during the swearing in.

(REUTERS/Jason Reed)

U.S. President Barack Obama and Attorney General Eric Holder attend the National Peace Officers Memorial Service at the Capitol in Washington May 15, 2013.

(REUTERS/Kevin Lamarque)

U.S. Attorney General Eric Holder is trailed by reporters upon his arrival on Air Force One at Joint Base Andrews in Washington March 6, 2015. Holder had accompanied U.S. President Barack Obama for the day to Columbia, South Carolina.

(REUTERS/Kevin Lamarque)

Attorney General Eric Holder (R) and his wife Sharon Malone attend the unveiling of Holder's official portrait with the artist Simmie Knox (L) at the Dept. of Justice, in Washington, February 27, 2015. Holder, the first African-American attorney general, serving since 2009, will be succeeded by Loretta Lynch, the first African-American woman to hold the position if confirmed by the Senate.

(REUTERS/Mike Theiler)

U.S. Attorney General nominee Loretta Lynch (C) speaks as U.S. President Barack Obama (R) and retiring Attorney General Eric Holder (L) look on, in the Roosevelt Room at the White House in Washington November 8, 2014.

(REUTERS/Jonathan Ernst)

United States Attorney General Eric Holder (L) participates in a selfie with Ju Hyeon Seo (R) during a ceremony for 70 citizenship candidates at the Justice Department in Washington July 22, 2014. Ju was formerly a South Korean citizen.

(REUTERS/Gary Cameron)

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Holder responded with a sharply critical statement. "These reversals will be both substantively and financially ruinous, setting the Department back on a track to again spending one third of its budget on incarcerating people, rather than preventing, detecting, or investigating crime," he said.

Brett Tolman, who served as United States Attorney for Utah under President George W. Bush and President Obama, said the Sessions memo "pulls U.S. Attorney offices back into that mentality or atmosphere where we thought we didn't have a choice, and didn't have any other option, but to charge the highest provable offense, regardless of what the very telling circumstances of your prosecution."

He recalled as an example a pregnant woman who agreed to drive a friend's car across the country, not realizing a secret compartment was loaded with methamphetamine. She was arrested in Utah, and despite having no criminal history, and knowing nothing about the drug operation she unwittingly helped, received a sentence of more than 10 years in prison.

"That's exorbitant," Tolman said.

From 2016:As Drug Sentencing Debate Rages, 'Ridiculous' Sentences Persist

The increased use of the sentencing enhancement for repeat offenders is also risky, Tolman said. He said the law is written to include prior state-level convictions, which opens offenders up to unfairly harsh penalties.

A U.S. Sentencing Commission analysis of the enhancement statute, known as an 851, found that it was used disproportionately against black drug offenders.

Several civil rights groups blasted Sessions' move. The NAACP Legal Defense and Educational Fund said Sessions had "turned back the clock on our criminal justice system, ensuring it will continue to disproportionately punish Black people." The American Civil Liberties Union said Sessions was asking prosecutors to return to policies that "have already cost us too much."

Douglas Berman, a law professor and sentencing expert at The Ohio State University, pointed out that the Sessions memo should not come as a surprise, because it reflects policies that Trump campaigned on, and ones Sessions has favored.

"My sense is that Sessions will not only be proud of this change back to what had been the pre-Holder tradition, but he will likely work harder to ensure it's implemented and enforced effectively around the country," Berman said.

He emphasized that prosecutors still have the ability to seek shorter sentences in some circumstances, particularly if an offender has agreed to cooperate with investigators. And revised sentencing guidelines give judges some leeway too.

Berman also stressed that many prosecutors are happy to see the new direction — even if it is an old one. There were "plenty of factions" in the Justice Department who were troubled by Holder's approach, Berman said.

That included members of the National Association of Assistant U.S. Attorneys, whose former president, Steve Cook, is now one of Sessions' top advisers. The organization put out a statement Friday praising Sessions' memo.

"The new guidance announced by Attorney General Sessions will restore the tools that Congress intended Assistant U.S. Attorneys to have at their disposal to prosecute drug traffickers and dismantle drug trafficking enterprises," the group said.

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