A response to Joyce Vance and Carter StewartSessions is Numero Uno in my book. I was bummed upon hearing the talk of his possible resignation. We really need this guy at the helm over there. He's MAGA.
wo former top Obama-appointed prosecutors co-author a diatribe against Trump attorney general Jeff Sessions for returning the Justice Department to purportedly outdated, too “tough on crime” charging practices. Yawn. After eight years of Justice Department stewardship by Eric Holder and Loretta Lynch, and after Obama’s record 1,715 commutations that systematically undermined federal sentencing laws, we know the skewed storyline.
The surprise is to find such an argument in the pages of National Review Online. But there it was on Tuesday: “On Criminal Justice, Sessions Is Returning DOJ to the Failed Policies of the Past,” by Joyce Vance and Carter Stewart, formerly the United States attorneys for, respectively, the Northern District of Alabama and the Southern District of Ohio. Ms. Vance is now lecturing on criminal-justice reform at the University of Alabama School of Law and doing legal commentary at MSNBC. Mr. Stewart has moved on to the Draper Richards Kaplan Foundation, fresh from what it describes as his “leadership role at DOJ in addressing inequities in the criminal justice system,” focusing on “alternatives to incarceration,” and “reducing racial disparities in the federal system.”
The authors lament that Sessions has reinstituted guidelines requiring prosecutors “to charge the most serious offenses and ask for the lengthiest prison sentences.” This, the authors insist, is a “one-size-fits-all policy” that “doesn’t work.” It marks a return to the supposedly “ineffective and damaging criminal-justice policies that were imposed in 2003,” upsetting the “bipartisan consensus” for “criminal-justice reform” that has supposedly seized “today’s America.”
This is so wrongheaded, it’s tough to decide where to begin.
In reality, what Sessions has done is return the Justice Department to the traditional guidance articulated nearly four decades ago by President Carter’s highly regarded attorney general, Benjamin Civiletti (and memorialized in the U.S. Attorney’s Manual). It instructs prosecutors to charge the most serious, readily provable offense under the circumstances. Doesn’t work? This directive, in effect with little variation until the Obama years, is one of several factors that contributed to historic decreases in crime. When bad guys are prosecuted and incarcerated, they are not preying on our communities. The thrust of the policy Sessions has revived is respect for the Constitution’s bedrock separation-of-powers principle. It requires faithful execution of laws enacted by Congress.
The thrust of the policy Sessions has revived is respect for the Constitution’s bedrock separation-of-powers principle. It requires faithful execution of laws enacted by Congress.
A concrete example makes the point. Congress has prescribed a minimum ten-year sentence for the offense of distributing at least five kilograms of cocaine (see section 841(b)(1)(A)(ii) of the federal narcotics laws). Let’s say a prosecutor is presented with solid evidence that a defendant sold seven kilograms of cocaine. The crime is readily provable. Nevertheless, the prosecutor follows the Obama deviation from traditional Justice Department policy, charging a much less serious offense: a distribution that does not specify an amount of cocaine — as if we were talking about a one-vial street sale. The purpose of this sleight of hand is to evade the controlling statute’s ten-year sentence, inviting the judge to impose little or no jail time.
That is not prosecutorial discretion. It is the prosecutor substituting his own judgment for Congress’s regarding the gravity of the offense. In effect, the prosecutor is decreeing law, not enforcing what is on the books — notwithstanding the wont of prosecutors to admonish that courts must honor Congress’s laws as written. Absent this Justice Department directive that prosecutors must charge the most serious, readily provable offense, the executive branch becomes a law unto itself. Bending congressional statutes to the executive’s policy preferences was the Obama approach to governance, so we should not be surprised that a pair of his appointed prosecutors see it as a model for criminal enforcement, too. But it is not enforcement of the law. It is executive imperialism. It is DACA all over again: “Congress refuses to codify my policy preferences; but I have raw executive power so I shall impose them by will . . . and call it ‘prosecutorial discretion.’” (In truth, it is a distortion of prosecutorial discretion.)
It should not be necessary to point out to accomplished lawyers that, in our system, “bipartisan consensus” is not a comparative handful of Democrats and Republicans clucking their tongues in unison. Yes, between leftist hostility to incarceration and libertarian skepticism about prosecutorial power, there is common ground among some factions of lawmakers when it comes to opposing our allegedly draconian penal code. But these factions are not much of a consensus. The only consensus that matters is one that drums up support sufficient to enact legislation into law. “Criminal-justice reform” is of a piece with “comprehensive immigration reform” and the Obama agenda: If it actually enjoyed broad popularity, resort to executive fiat would be unnecessary — Congress would codify it.
The criminal-justice “reformers” want mandatory-minimum-sentencing provisions eliminated and other sentencing provisions mitigated. Yet, despite the sympathetic airing they get from the “progressive” mainstream media, they are unable to get their “reforms” passed by Congress. How come? Because strong majorities of lawmakers understand themselves to be accountable to commonsense citizens — people who aren’t “evolved” enough to grasp how reducing the number of criminals in prisons will somehow decrease the amount of crime. Most of us benighted types proceed under the quaint assumption that, even in “today’s America,” the streets are safer when the criminals are not on them.
In light of the caterwauling about mandatory-minimum sentencing by people either unfamiliar with or in a state of amnesia about what the federal system was like before it was instituted, it is worth repeating: Such provisions mean that the public, rather than the judge, decides the minimum appropriate term for serious crimes. As a class, judges are elite products of American universities and tend to be more left-leaning than the general public. That is particularly the case with respect to President Obama’s 335 judicial appointees, many of them — like Obama himself, as well as Vance and Stewart — philosophically resistant to incarceration as a response to crime. We can certainly repeal mandatory minimums, but if we do, it will vest those judges with unfettered discretion to mete out punishment...
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