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The drug tug-of-war

Translating the attorney general’s 'tough on crime' talk

United States Attorney General Jeff Sessions in May ordered federal prosecutors to pursue the toughest provable charges and sentences against crime suspects, including nonviolent drug offenders.

Reversing Obama-administration policies that eased imposing strict mandatory minimum sentences could have far-reaching implications, explained Ohio State law professor Douglas A. Berman, a renowned authority on criminal sentencing whose popular Sentencing Law and Policy blog is a must-read for judges, lawmakers and journalists.

He shared his insights on what the changes could mean for offenders, communities and women.

Sessions has talked about bringing a “tough on crime” stance back, but hasn’t tough punishment as a way of reducing crime proven to be wrong?

Yes and no, depending on how you look at the data.

Imprisonment, especially lengthy terms of imprisonment, does have an incapacitation effect. You lock somebody up for 20 years, they’re less able to commit crime for those 20 years. When you let them out, they’re less likely to commit crimes than if you’d only locked them up for five years because crime is more often committed by younger persons.

But it’s not clear that imprisonment is a good use of resources. The amount of money it takes to keep that person locked up for 20 years, the harm done to the community from that person’s removal in terms of their families and others whose lives may be disrupted, may actually exacerbate the conditions for crime in a particular community.

So one can readily say that really long prison terms, especially for lower-level offenders, may undermine efforts to control crime in a community, rather than help them.

Sen. Rand Paul (R-KY) has said that mandatory minimum sentences have “unfairly and disproportionately incarcerated too many minorities for too long” and that the new policy will “accentuate that injustice.” As a scholar who researches this, what do you th

I think he’s right. If you’re a true kingpin with a long criminal history, the sentencing rules are going to push the sentence way above the minimum. The criminals for whom the mandatory minimum sentences matter are the lower-level, first-time offenders.

Of course this is exactly what prosecutors want. They want to be able to go to those folks and say, “You either tell us who your suppliers are, who your kingpins are, or you’re going to get slammed.”

That’s really what the tough charging policies are about — creating additional pressure and leverage on individual offenders. And these tools especially impact lower-level and minority offenders — people who don’t have money, resources and power in the community.

You study marijuana reform and taught one of the nation’s first classes on marijuana law and policy. Pot is now legal in some form in 29 states. What impact might Sessions’ policy have on this?

Memos that were put in place during the Obama years stressed that the federal system does not place a priority on prosecuting people who are in compliance with state marijuana reforms.

The new Sessions memo doesn’t reverse this. However, there are all sorts of rumblings that suggest he may be working on another memo to reverse the Obama era marijuana policies.

All of that uncertainty has started to have an impact on the development of the marijuana industry. There are reasons to believe that people who might have been eager to invest in a marijuana business are holding back until we see what the new attorney general will want to do in this space.

What about illegal use? Many states treat possession of small amounts as they would a traffic ticket. Is Sessions’ policy likely to have an impact on that?

The reality is federal marijuana cases typically involve individuals caught with literally a hundred pounds of marijuana, not a couple of joints. The particulars in individual states, where most of marijuana enforcement gets done, aren’t going to be affected in any obvious, tangible way by what Sessions has said so far.

What about women? The number of women in prison increased at a rate 50 percent higher than men since 1980, when the “war on drugs” began in earnest. Nearly 60 percent of women in federal prisons are serving time for drug offenses. What do those statistics

The statistics tell us, at the risk of being simplistic, not only is crime disproportionately a man’s game, serious crime — murder, rape, assault, robbery — is even more disproportionately a man’s game. Before the modern drug war, the prison population was heavily male-tilted.

Now, let’s look at the drug war kicking into high gear. Women are involved on the periphery, relatively speaking, but they’re that much more involved because of the nature of the criminal activity.

If a woman prepares a meal for a man going to rob a bank — even though she knows what’s going on and she’s making a nice breakfast so he can go rob a good bank — when they catch him, they don’t go after her as a conspirator. But when she takes a phone call from somebody who wants to buy drugs and she passes on the message, that is seen as part of the drug activity. And then, because she’s involved with the same quantity of drugs that he is, the mandatory minimum kicks in.

Will anything change under Sessions?

The Sessions memo has an offense-specific focus: Just look at the offense, and whatever the offense is, you’ve got to prosecute for that offense. That concern with only what’s the criminal conduct, not what’s the context for the criminal, has tended to hurt women more than help them.

On television we see characters taking a plea agreement. One example is in “Orange Is the New Black,” based on the real experience of Piper Kerman. Charged with drug conspiracy and money laundering for transporting a suitcase of drug money, she worked out

Yep. Kerman’s case actually was processed based on pre-Holder memo policies, established by then-Attorney General (John) Ashcroft, which were essentially the same as the current Sessions memo.

Plea agreements are the mother’s milk of the system in operations, and always will be.

What about women? The number of women in prison increased at a rate 50 percent higher than men since 1980, when the “war on drugs” began in earnest. Nearly 60 percent of women in federal prisons are serving time for drug offenses. What do those statistics

The statistics tell us, at the risk of being simplistic, not only is crime disproportionately a man’s game, serious crime — murder, rape, assault, robbery — is even more disproportionately a man’s game. Before the modern drug war, the prison population was heavily male-tilted.

Now, let’s look at the drug war kicking into high gear. Women are involved on the periphery, relatively speaking, but they’re that much more involved because of the nature of the criminal activity.

If a woman prepares a meal for a man going to rob a bank — even though she knows what’s going on and she’s making a nice breakfast so he can go rob a good bank — when they catch him, they don’t go after her as a conspirator. But when she takes a phone call from somebody who wants to buy drugs and she passes on the message, that is seen as part of the drug activity. And then, because she’s involved with the same quantity of drugs that he is, the mandatory minimum kicks in.

Will anything change under Sessions?

The Sessions memo has an offense-specific focus: Just look at the offense, and whatever the offense is, you’ve got to prosecute for that offense. That concern with only what’s the criminal conduct, not what’s the context for the criminal, has tended to hurt women more than help them.

On television we see characters taking a plea agreement. One example is in “Orange Is the New Black,” based on the real experience of Piper Kerman. Charged with drug conspiracy and money laundering for transporting a suitcase of drug money, she worked out

Yep. Kerman’s case actually was processed based on pre-Holder memo policies, established by then-Attorney General (John) Ashcroft, which were essentially the same as the current Sessions memo.

Plea agreements are the mother’s milk of the system in operations, and always will be.