Booker, Durbin, Leahy Urge Attorney General To Maintain Common Sense Drug Charging Policies

Senators advocate against prosecutors charging mandatory minimums for low-level, nonviolent drug offenses

Returning to one-size-fits-all charging, sentencing policies could needlessly expand prison population, waste taxpayer resources

WASHINGTON, D.C. – Today, U.S. Senators Cory Booker (D-NJ), Dick Durbin (D-IL), and Patrick Leahy (D-VT) urged Attorney General Jeff Sessions to maintain current drug charging policies that give federal prosecutors discretion not to charge the mandatory minimum for nonviolent, low-level drug cases, instead of requiring them to charge one-size-fits-all penalties.

Mandatory minimum penalties, the Senators state in a letter to Sessions, are one of the largest drivers of mass incarceration – costing taxpayers billions of dollars annually – and Congress did not intend for such penalties to be used against low-level nonviolent offenders, but rather to be reserved for drug kingpins.

“Changes to current drug charging policies that lead to more mandatory minimum penalties in low-level, nonviolent drug cases will not enhance public safety and will only increase taxpayer spending on our bloated federal prison system,” the lawmakers wrote. “We are concerned about a possible shift in the Justice Department’s treatment of federal drug cases and the specter that mandatory minimum penalties may once again be used by the Justice Department on a routine basis as tools to prosecute low-level nonviolent drug offenses.”

The letter comes on the heels of a memo Sessions sent to federal prosecutors earlier this month suggesting he may make changes to existing Justice Department drug charging policies.

Booker has been a leading voice in the Senate for criminal justice reform. Last Congress he was part of a bipartisan group of senators behind a landmark reform legislation that passed the Judiciary Committee and earned the support of 37 Senators and more than 400 groups and organizations from across the political spectrum. He has also introduced bills to reduce recidivism, restrict the use of juvenile solitary confinement, and end the school to prison pipeline.

March 21, 2017

The Honorable Jeff Sessions

Attorney General

U.S. Department of Justice

950 Pennsylvania Avenue, NW

Washington, D.C. 20530

Re:       Prosecutorial Drug Charging Policies for Nonviolent Offenses

Dear Attorney General Sessions:

We write to express our deep concern about reports that you are considering possible changes in Justice Department drug charging policies. Changes to current drug charging policies that lead to more mandatory minimum penalties in low-level, nonviolent drug cases will not enhance public safety and will only increase taxpayer spending on our bloated federal prison system.

As members of the United States Senate who have worked for years on bipartisan efforts to reform our broken criminal justice system, we are concerned about a possible shift in the Justice Department’s treatment of federal drug cases and the specter that mandatory minimum penalties may once again be used by the Justice Department on a routine basis as tools to prosecute low-level nonviolent drug offenses.

Mandatory minimum penalties for nonviolent drug offenses are one of the largest drivers of mass incarceration, which has resulted in nearly one in 100 American adults being incarcerated today. When America has about five percent of the world’s population, yet nearly 25 percent of its prisoners, we need to take a step back and reconsider how we approach our criminal justice system.

Our federal prison population has exploded in the last several decades. Our federal prison population has grown by nearly 800 percent since the 1980’s, due in large part to the influx of drug offenders. For example, in fiscal year 2013, 60 percent of federal drug offenders were convicted under mandatory minimum penalties.

Over the last seven years, the Justice Department has enacted common-sense drug policies designed to reduce mass incarceration and increase public safety. In 2010, the Justice Department’s Smart on Crime initiative was created to reduce unnecessary incarceration by asking federal prosecutors to exercise discretion—and make smart decisions—about which cases warrant federal prosecution. In August 2013, in recognition that not every drug case belonged in federal court, the Department directed prosecutors in federal drug cases to focus on the worst offenders and offenses and charge the most serious cases.

This Justice Department policy, which is consistent with the intent of Congress that mandatory minimums should only be for drug kingpins, not low-level, nonviolent offenders, has been effective in focusing resources on violent criminals as opposed to nonviolent offenders. Because prosecutors have been more selective in bringing drug prosecutions, the number of defendants charged with drug trafficking crimes declined by nearly 19 percent between fiscal years 2012 and 2015.

In fiscal year 2012, about 61.5 percent of federally-charged drug cases received mandatory minimum sentences. By fiscal year 2015, less than half of those crimes had a mandatory minimum—without having any adverse impact on public safety. The evidence shows that while drug trafficking prosecutions dropped, the average guideline minimum for a defendant rose from 89 months in 2012 to 98.9 months in 2014, indicating that prosecutors were targeting the most serious cases, consistent with Congress’s intent.

These results are encouraging. They demonstrate that the Smart on Crime federal charging policies have been a productive first step in addressing the root causes of the unsustainable growth in our federal prisons. At a time of bipartisan commitment to reforming our sentencing laws and policies, our nation cannot afford to turn back the clock on the Smart on Crime program or its common-sense tools.

If you decide to direct prosecutors to once again charge mandatory minimums in low-level nonviolent drug cases, it would come at great costs—not only to American taxpayers, but to public safety, to families, and to confidence in our justice system.

Federal prisons cost taxpayers billions annually and account for about a quarter of the Justice Department’s budget. Every dollar spent incarcerating a nonviolent drug offender is a dollar we cannot spend investigating serious violent crimes or investing in crime prevention and anti-recidivism efforts. To direct prosecutors to charge mandatory minimums in low-level drug cases would draw these precious law enforcement resources away from prosecuting drug kingpins or violent offenders and preventing crime in the first instance, thereby endangering public safety. And charging more mandatory penalties in nonviolent drug cases would once again reverse the downward trend in the federal prison population, putting our brave corrections officers’ safety at greater risk.

There are human costs too. Too many children grow up with a parent behind bars. Today, 2.7 million American children have an incarcerated parent, and one in nine African-American children have a parent behind bars. Charging more offenses that carry mandatory minimum penalties in low-level nonviolent drug cases would take countless more parents away from their children, endangering the family structures that help to prevent crime.

Finally, mandatory minimums impact public confidence in our justice system. Historically, mandatory minimums have been used against racial minorities at a staggeringly disproportionate rate. For example, the independent and bipartisan U.S. Sentencing Commission has reported that about 70 percent of mandatory minimums are imposed on African American and Latino people. Harsh mandatory minimums do more harm than good in moving our nation toward a justice system that ensures equal justice under law.

In your March 8 memorandum to federal prosecutors, entitled “Commitment to Targeting Violent Crime,” you suggested that the most recent crime data evidences a need for “aggressive prosecutions,” including prosecutions of drug trafficking. We understand that spikes in violent crime in some U.S. cities must be taken seriously, and we must do all that we can to make American communities safe for our citizens.

But the data shows that crime is still near all-time lows across the country. The latest FBI Uniform Crime Reporting data show that, although violent crime increased from 2014 to 2015, the rate still represents a five-year decrease from 2011 levels. Overall, both the murder rate and the overall violent crime rate have been declining consistently since the 1990s, and are at their lowest point since the 1970s.

The facts indicate that concerns of a national crime wave are premature. While these trends suggest a need to understand how and why homicides have increased in some cities, we should not lose sight of the fact that crime rates remain near historic lows. Even more, a rise in violent crime in some cities in no way supports a need to charge more mandatory minimums to deter nonviolent drug trafficking crimes nationwide.

We ask that you preserve the Smart on Crime charging policies, which increase public safety and help make our federal justice system more fair and equitable. Our nation’s principles of equal justice under law deserve no less.

Sincerely,

Cory A. Booker

Richard J. Durbin