DOJ Should Not Turn Back the Clock

Mr. Sessions should familiarize himself with the innovative and highly successful federal and state court treatment programs

Recently, United States Attorney General, Jefferson Beauregard Sessions III, issued a memo directing all federal prosecutors to seek the harshest penalties possible in all criminal cases. Mr. Sessions has taken aggressive steps to dismantle criminal justice reforms outlined in the Department of Justice (DOJ) 2013 Smart on Crime policy which instructed prosecutors to appropriately charge eligible individuals who qualified for lesser charges and therefore lesser prison time. Under Sessions’ proposal, judges could impose mandatory minimum sentences of 20 years to life for certain categories of drug possession offenses. This is a return to a policy of mass incarceration that utterly failed in the past to stem the flow of drugs. This revived policy will encourage mass incarceration and sharply increase the federal prison population. Worse, it will exact a very high cost to public safety because the appropriated funds will be diverted to the incarceration of low level non-violent drug offenders who would be otherwise eligible for alternative approaches such as treatment courts, and away from important national safety priorities.   

By no means is it being suggested here that criminals should go free. To protect our communities, drug dealers, and in particular those who are violent, working with cartels, or using guns should receive the strictest of penalties. But not every defendant merits the highest penalty available, and imposition of such penalties makes little fiscal sense.

We spend $34,000 annually to imprison one federal inmate. In Montana, the cost to annually incarcerate a state prisoner is approximately $42,000. Nationwide, taxpayers shell out $7.5 billion per year on the federal prison population alone. In 1980, the cost to incarcerate the federal prison population was $330 million. Since then, the cost has mushroomed by 2,000 percent. Nonetheless, Sessions seeks to reinstate an expansive and expensive policy that will unnecessarily result in long and draconian sentences for non-violent drug users, many of whom are veterans and minorities, and pack the United States prison system. Respectfully, this makes no sense.   

Mr. Sessions should familiarize himself with the innovative and highly successful federal and state court treatment programs currently in existence across the country. These courts have been funded in part by DOJ grants, which will likely disappear under Sessions’ new policy. By way of example, in Montana, state Judges Greg Pinski and Mary Jane Knisely, federal Chief Judge Dana Christensen, and the United States Attorney’s Office entered into an agreement in 2015 establishing a joint state and federal veterans’ court – one of the very first in the United States. Underpinning this and other drug treatment programs is the belief that justice can be obtained through a robust and intensive treatment court as an alternative to incarceration. The success of such programs stems from wrap-around services from mental health and addiction professionals, employers and community leaders, faith-based groups, probation officers and veteran mentors. And yes, these courts are successful. Since its inception, Judge Pinski’s court has had over 50 participants and 23 graduates, and none of the graduates have returned to criminal activity. The cost of such a treatment court is roughly $4,500 per attendee, less than 15 percent of the annual cost of a prison bed. And the return on investment is the individual’s return to family and a productive life. Drug treatment court programs across the nation have enjoyed similar successes.   

We tried the Sessions’ model in the ‘80s and ‘90s – it did not work then and it will not work now.  Today, America is home to 5 percent of the world’s population and 25 percent of its prison population. This is a staggering statistic. The reinstatement of the “lock them up and throw away the key” approach will only plunge more money into the incarceration of drug users and deplete funds needed for other treatment options, not to mention funds needed for important safety priorities like preventing terrorist attacks, fighting violent crime, rescuing exploited children, and combatting white collar crime. And it will do nothing to stem the flow of drugs. I therefore encourage today’s DOJ to reassess its incarceration policies and priorities and adapt to the realities and possibilities available in the 2017 criminal justice system.

Michael W. Cotter was United States Attorney for the District of Montana from  2009-2017.

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