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How Far Can Jeff Sessions Take His Crime War?

A memo from 1982 sheds a harsh light on the Trump AG's crusade for “law and order" 25 years later.

Win McNamee/Getty

In 1982, an ambitious U.S. attorney named Jeff Sessions sent his boss in Washington, D.C. a letter offering some advice on matters above his pay grade. Ronald Reagan had won the presidency two years earlier and was reviving Richard Nixon’s harsh rhetoric on crime and drugs, promising Americans protection from “the human predator.” At the Justice Department, the legislative wish list included the introduction of harsh sentencing guidelines and bringing back the federal death penalty. But there was a problem: How were they going to get such measures by the liberal Democrats who ran the House?

In a memo I discovered at the National Archives, Sessions recommended a partisan, scorch-the-earth strategy in Congress, and a fear-mongering campaign with the public. The young U.S. attorney urged then-Attorney General William French Smith to take a more aggressive approach and begin the next round of negotiations by demanding “all the legislation we want.” And then the Democrats would hang themselves. “The liberals will buzz about with agonizing whines,” Sessions predicted. “After they have come forth and identified themselves as sympathizers for drug smugglers and other assorted criminals, congregating about the bait, they should then be flattened by the President in a full-scale campaign on behalf of the legislation.”

Reagan’s message to the public, selling his tough-on-crime measures, would then be beautifully simple, Sessions said: “We support stability and order; they wander about wringing their hands crying for the criminals while violence everywhere escalates.”

Thirty years later, Jeff Sessions himself is the boss at the Department of Justice, and he’s looking to inject new life into the war on crime. His methods haven’t changed, judging by his performance as attorney general thus far—or by the “law-and-order” fear-mongering of his close ally Donald Trump. Sessions recently appalled criminal-justice reformers by ordering his U.S. attorneys to file the most serious charges possible in criminal cases. That reversed guidance from his predecessor, Eric Holder, that encouraged the federal prosecutors to think twice before triggering the heaviest penalties.

It was also the latest salvo in a distorted campaign to convince Americans that the nation is on the brink of a violent-crime epidemic, and that naïve criminal-justice reformers are heightening the risk. Trump set the template during the GOP primary campaign. In his dark acceptance speech, he warned that “decades of progress made in bringing down crime are now being reversed by (the Obama) administration’s rollback of criminal enforcement.” He persistently linked immigration with crime, and of course, he rolled crime into his dystopic “American carnage” inaugural. 

Sessions, the only senator to endorse Trump early in the campaign, and an adviser throughout, echoes the false claims about immigration and crime and the incendiary rhetoric so familiar from the ’70s and ’80s. In April on Long Island, Sessions was in vintage “crime war” form, according to the prepared version of his remarksGroups of murderers, rapists, traffickers and thugs are carrying out a frontal assault on the decent, law-abiding men and women of this community and others like it across our country,” he declared.  

In fact, the last two years have seen worrying increases in the nation’s violent-crime rate, and some American cities have developed a full-blown homicide crisis. That is a serious problem anybody who cares about criminal justice should be watching closely. But it does not justify the Sessions-Trump imagery of marauding gangsters terrorizing an entire nation. Overall, the United States today remains a much safer country than it was 30 years ago.

So the attorney general of 2017 faces a dramatically different climate than the unknown Alabama prosecutor of 1982. Even conservatives are now leading criminal-justice-reform efforts in several red states. But reformers must keep their guard up. Because for Sessions, crime is an inherently polarizing issue—and that’s the best news for Republicans who want to crack down. “We should relish the fact that there will be opposition,” Sessions wrote back in 1982. “We want opposition because it defines who we are and who they are. The bigger the confrontation, the clearer the definition.”

There is no evidence that Sessions’s 1982 memo had any impact on the Reagan administration, but his vision certainly was fulfilled. Incarceration soared in all states during the 1980s and 1990s. By 2013, the number of inmates locked up by the federal government, in particular, had septupled. But then the trend began turning around. By 2016, the federal prison population had shrunk by a stunning 14 percent. That meant 30,500 fewer people behind bars, and provided some relief from an overcrowding crisis that was threatening to get out of hand.

Sessions will certainly stop that progress, and he may reverse it. Sentences will get longer as a result of the May 10 charging memorandum. But the order may have a greater effect that isn’t so obvious: It may result in not only longer sentences, but more cases being brought, period. In the last five years of the Obama administration, the number of defendants charged in federal cases plummeted from about 103,000 to about 77,500, the lowest number since 1998. A number of factors drove that decline, including a hiring freeze that reduced DOJ’s bandwidth. But John Walsh, who served as U.S. Attorney for Colorado in the Obama administration, says Holder’s policy requiring prosecutors to justify the use of mandatory minimum sentences was also a contributing factor: The rule forced prosecutors to hone in on the worst offenders. That is now history.

Sessions has another way to influence sentencing guidelines: Trump will be appointing five new members of the seven-member U.S. Sentencing Commission, which sets guidelines that judges use to sentence defendants, by the end of the year. In 2014, the Commission rolled back guideline sentences for drug offenders, reducing sentences by about 17 percent.

Fortunately, the federal government has limited influence over the calamity of mass incarceration. The feds do operate the nation’s largest prison system, but that still accounts for only 10.5 percent of people incarcerated in the U.S. Otherwise, it’s up to the states (with roughly 1.2 million prisoners) and counties (roughly 600,000 jail inmates.)

The only way that Sessions and Trump can really change a political culture that has moved away from the tough-on-crime consensus of the 1980s and 1990s is to lead a public law and order crusade. The campaign started it, but there’s a long way to go—and a lot of fear-mongering to do—to shift the tide. Democrats now largely condemn the prison policies they once went along with. Republicans are more circumspect, but the conservative movement for prison reform has achieved impressive incarceration reductions in some bright-red states.

Despite fears that state and local politicians would be scared off by the tough talk coming out of Washington, the momentum for reform has continued through the beginning of the Trump presidency. “So far, we haven’t seen much of an impact at all,” said Adam Gelb, who runs a unit of the Pew Charitable Trusts that advises states on criminal-justice reform. “States have built up a strong head of steam, with broad support across the political spectrum for policies that work better and cost less.”

The kinds of states you’d imagine getting behind Sessions’s new “law and order” campaign are actually among those getting behind progressive reforms. Louisiana is on track to pass a plan that could cut its prison population 10 percent over a decade — probably not enough to shed its status as the nation’s leading per-capita jailer, but significant progress nonetheless. Utah approved a big juvenile-justice reform in April. The same month, North Dakota legislators voted to favor probation over prison for low-level felonies, among other changes. Most surprising, Alabama is poised to restore voting rights for thousands of felons.

The America of 2017 is much less hospitable to a crime war than the America of 1982. The fact that, despite recent increases, crime remains way down makes it harder to stir up panic than it was back in the 1980s and 1990s. The rural dimension of the opioid epidemic has contributed to a new understanding of drugs as a problem of public health. Years of activism and aggressive reporting on the ravages of mass incarceration are also beginning to register in the public conscience, especially among millennials to whom the excesses of the past look simply bizarre.

Of course, scandal is drowning out most of the administration’s policy agenda these days, and incompetence is impeding progress otherwise. All this makes it seem unlikely, perhaps, that Jeff Sessions will succeed in a long-shot bid to return America to the crime-war posture of years past. But in some ways, the administration’s own failures increase the risk. If Trump cannot deliver the policy “wins” he so desperately needs out of Congress on health-care, taxes, and infrastructure, he will search for other ways to assert his leadership.

But as Sessions realized years ago, the mix of race, drugs, and crime is a powerful force in American politics.

The fact that Sessions’s sentencing memo was met with deafening silence from Republican members of Congress suggests that spines on Capitol Hill remain as gelatinous on this issue as any other involving the administration. The onus is not entirely on conservatives, though. Liberals should do more than simply bat down Sessions’s inaccurate portrayal of the whole country as being in the grips of a violent-crime meltdown. They should emphasize that the recent uptick in violence is worrying, that some American cities are indeed having a crisis-level problem—and that Sessions has absolutely no idea what to do about this.

We know much more than we used to about fighting crime. Prisons surely play a role, but we’ve long ago reached the point of diminishing returns from warehousing people. If Donald Trump cares about Chicago as much as he tweets about it, liberals should argue, then rather than blowing the city off, he would deploy federal money to support policing and violence-prevention programs that work, there and in other high-homicide towns.

If reformers play their cards right, Sessions may ultimately find that the crime war whose terms he understood so well as a young man has been redefined in ways he can no longer grasp.