Obama and the Good Old Days of Federal Prosecution?

By David Patton*

These days as a federal public defender, I’m often asked some version of, “Aren’t federal prosecutions horribly unfair and draconian now that Jeff Sessions is heading the Department of Justice?” I usually respond with some version of “Yes, they are.”  What I often leave out is, “And they have been for as long as I can remember.”

A casual observer of the federal criminal justice system could be forgiven for thinking that Sessions has put an end to an enlightened and magnanimous era of federal prosecution under President Obama and his Attorneys General Eric Holder and Loretta Lynch.  After all, just a few months into the job, Sessions issued a memorandum changing course on Obama-era charging policies such that prosecutors are now required to “charge and pursue the most serious, readily provable offense.”  And both in rhetoric and tone, Sessions has indicated a desire to bring more severity to the system, most prominently by opposing bipartisan Congressional support of sentencing reform.  Those are disturbing changes for the worse and should worry anyone concerned about mass incarceration and racial bias in the criminal justice system.

But we should also be careful about lionizing what came before.  Someday a more reasonable group of people may return to power.  Perhaps even a group with politics that look quite similar to the Obama Administration.    They may talk a good game about the need to reduce incarceration and create a more just and equitable system.  And because they may point to Obama-era policies as a model, we should consider just how reformist those policies actually were.

Nationwide, roughly 80-percent of all federal defendants are too poor to hire a lawyer.  Roughly 75- percent are black or non-white Hispanic – well more than double the percentage of the population at large.  Those figures have remained relatively constant throughout the Clinton, Bush, Obama, and now Trump administrations.  Indeed, if anything, racial disparity grew slightly worse during the Obama administration.

Though media coverage may focus on prosecutions of the rich and powerful, political corruption and white collar offenses represent a small slice of federal prosecutions.  In the last year of the Obama administration, the most commonly prosecuted offenses, comprising one-third of all prosecutions, were drug crimes. The next highest offense type, immigration offenses, amounted to 30 percent of all prosecutions – mostly against people who illegally reenter the country after having been deported and who typically face sentences from two to seven years before being deported again.  And the third most common offense type, at 11 percent, was for unlawful gun possession, usually brought against people who would otherwise be prosecuted in state court but are charged in federal court for the express purpose of imposing higher sentences – sometimes dramatically higher if they qualify for a recidivist statute that carries a mandatory minimum sentence of 15 years imprisonment.  Those three categories comprise three-quarters of all federal prosecutions, and they are strikingly similar to the figures throughout the Bush years.

The high volume of prosecutions against poor people of color gained the most steam in the 1990s during the Clinton Administration when the practice of bringing relatively low-level drug, gun, and other assorted street-crime cases in federal court for the purpose of jacking up sentences became routine.  The practice continued, with added fervor, in the Bush years.  And for the first five years of the Obama administration, charging practices continued largely unchanged.

Only in 2013 and 2014 did the administration take small steps to curb the decades-long growth of severity in a pair of Holder memoranda discouraging the use of mandatory minimum charges in drug cases absent certain criteria.  I say “small” because the criteria were easily evaded and often ignored by local United States Attorney’s Offices.  A survey of federal public defenders a year after implementation of the memos showed that only 40 percent of districts were regularly following the new guidance.

This is not to say there is no difference between Sessions and Holder.  An increase in the use of mandatory minimum sentences under Sessions is very unwelcome news, and we have yet to see just how bad it will be.  It is also likely that we will see greater use of the death penalty under Sessions, with authorizations already trending up.  That alone is reason to be alarmed.

But our baseline for what is just and reasonable in the criminal justice system has become so skewed that prosecution policies under a progressive administration are still far more unjust and severe than that of Republican counterparts just a generation ago.  Everything from case selection to charging policy to harsh sentencing advocacy has led to a roughly 700 percent increase in the federal prison population over the past four decades.  On balance, the Obama Administration made minor improvements.  Many more are desperately needed.

Doing better than the fringe policies of the Trump Administration should not become the new yardstick.  Progressives who want to see real change in the federal criminal justice system must do two things:  (1) insist on significant legislative reform — especially on sentencing — to bind prosecutors no matter who heads the Department of Justice; and (2) press potential future occupants of the White House on a concrete, reformist agenda that goes far beyond pining for the Obama days.

*David Patton is the Executive Director and Attorney-in-Chief for the Federal Defenders of New York.

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