4 Problems With Jeff Sessions’s New “Tough on Crime” Stance


Attorney General Jeff Sessions announced last week that federal law enforcement agencies and federal prosecutors should work harder to charge suspects with more serious crimes and seek longer prison terms. 

By:  Ryan McMaken

This article first appeared at Mises.org

This move by Sessions signals a departure from the policies of AG Eric Holder under Obama who had employed policies designed to focus on more serious crimes and lesson the number of defendants charged with non-violent drug offenses.

Sessions, it seems, believes the US had better get touch on crime, or be swept up in a wave of criminality. The Washignton Post reports:

In speeches across the country, including his first major address as attorney general, Sessions has talked of his belief that recent increases in serious crime might indicate that the United States stands at the beginning of a violent new period. He has noted that the homicide rate is half of what it once was, but he has said he fears times of peace might be coming to an end if law enforcement does not quickly return to the aggressive tactics it once used.

But, there are at least four problems with this approach.

One: It’s Not at all Clear that Imprisoning Non-Violent Offenders Reduces Real Crime

As noted by Rand Paul in his recent letter condemning Session’s latest move:

Our prison population … has increased by over 700% since the 1980s, and 90% of them are nonviolent offenders. The costs of our prison system now approaches nearly $100 billion a year. It costs too much, in both the impact on people’s lives and on our tax dollars.

At such a high cost, one would think there is incontrovertible evidence that such a large prison population is necessary to combat crime — assuming we define crime as actual violations of persons and property.

The evidence is ambivalent at best, and there is evidence suggesting that high incarceration rates may actually encourage more criminality. Because incarceration can have long-term affects on one’s ability to earn a living through legal means, researcher Michael Mueller-Smith concluded “incarceration led to increased criminality for inmates after re-entry.”

Moreover, by incarcerating small-time drug users and other non-violent “criminals” in the same place as hardened criminals, the prison system forces a larger portion of the population to come in contact with truly violent offenders, which may also help explain why there appears to be a sizable correlation between being a former prison inmate and being a victim of homicide.

Although President Trump has attempted to whip up hysteria about rising crime in some places, homicide rates remain near 50-year lows, and the rising violent crime that we are seeing is confined to a handful of cities like Chicago and Baltimore.

As is typical of a federal bureaucrat, though, Jeff Sessions thinks a nationwide response is necessary to address what is clearly a localized phenomenon. As Sessions fails to mention, violent crime is already illegal in Chicago and Baltimore, and Illinois and Maryland already have prisons, police, and government prosecutors.

Two: We Don’t Need Federal Prosecutors

Keep in mind that real crimes such as robbery, fraud, and murder are all already illegal under state and local laws. States also outlaw many non-crimes such as drug running, prostitution, and drug possession. What Jeff Sessions and his federal prosecutors do, however, is add a costly and unnecessary layer of law enforcement that no one actually needs.

As I noted last week, the FBI’s budget alone is $8.7 billion. That doesn’t include the bloated budgets of other federal law enforcement agencies such as the DEA, which rakes in more than $2 billion. But if we look at the Department of Justice overall, we find a budget that topped $39 billion in 2016 and has increased by 67 percent over the past ten years. Has the median American’s household budget increased by 67 percent over the past decade? Hint: not even close.

Nor are federal law enforcement agencies necessary to keep law and order in the US states. As discussed here, those who support agencies like the FBI have never demonstrated a need for a large federal law enforcement apparatus.

RELATED: “Dismantle the FBI, and Give its Money Back to the States” by Ryan McMaken

There is a reason, after all,that the US Constitution lists exactly three federal crimes. Most other federal crimes created by Congress and the bureaucracy have been justified under the amorphous “necessary and proper” clause of the Constitution which means whatever federal judges want it to mean. Moreover, 100 years ago, it was the consensus that federal attempts to control substances like drugs were unconstitutional. This is why the 18th Amendment to the US Constitution was necessary before alcohol prohibition could be enacted. Of course, just because the US Constitution says something doesn’t make it true, or a good idea. But even by the expansive and vague standards of the Constitution, there is no justification for virtually any federal law currently being prosecuted in federal courts.

Three: The War on Drugs has Failed

Mark Thornton writes:

Attorney General Sessions’s announcement can clearly be seen for what it is: a rear guard action in the war on drugs. Such actions take place when circumstances of time and place creates an opportunity to stall an invading force. An example of a rear guard action would be the German military during World War II. Once defeat was obvious the German military retreated out of North Africa and Italy, but occasionally would stop and fight from a defensive position. The purpose of such fighting is not to win a battle or war, but rather to allow more time to evacuate troops and equipment safely.

In other words, the Sessions Escalation is an attempt to salvage what is obviously a failed effort. The NY Times reports:

If there is one number that embodies the seemingly intractable challenge imposed by the illegal drug trade on the relationship between the United States and Mexico, it is $177.26. That is the retail price, according to Drug Enforcement Administration data, of one gram of pure cocaine from your typical local pusher. That is 74 percent cheaper than it was 30 years ago.

Meanwhile, drug opiate deaths in the United States quadrupled from 2000 to 2003, and as of 2013, “Drug poisoning (overdose) is the number one cause of injury-related death in the United States.”

This has all occurred while the federal government has poured billions of dollars into government agency coffers in the name of the war on drugs with the US spending nearly $40 billion in 2015 alone.

By its own standards, the War on Drugs is a complete failure. But Sessions wants to double down on it and add even more inmates to clog the federal courts and fill the federal prisons. All at great cost to the taxpayers, of course.

Four: Government Prosecutors Already Have far too much Discretion to Prosecute

And finally, it may be helpful to remember that the very philosophy behind government prosecution today is one that encourages frivolous prosecutions and prosecutions for victimless crimes. As noted by Michael Giuliano, the notion of government prosecuting crimes without first establishing a victim is a modern innovation contrary to older Common Law practices. Prior to the 19th century:

Criminal or quasi-criminal prosecutions in England were initiated by the aggrieved private parties. Privately-initiated criminal prosecution was a key feature of the common law tradition and a privately-initiated procedure might assist in holding unaccountable prosecutorial rule at bay. The existing “government by prosecution” framework offers little defense against an emboldened bureaucracy.

Our current police and gun control controversies are but the latest in a long tradition. The prosecutorial system and criminal procedure were longstanding, fitful political issues in most English communities and they aroused passionate opinions. The formal transition from private to public prosecution in England did not occur until 1879 and years passed before it could be implemented in practice. The English gentry had long been suspicious of both a public prosecution system and a professional police force.

Once upon a time, government agents prosecuted crimes because victims demanded it. In the modern age of government prosecutions, the imaginary idea of “the state” being the aggrieved party has paved the way for government agents to endlessly prosecute defendants where no victim can be found, and no one has asked for the government’s interference.

Today, however, government prosecutors wield vast power and immense amounts of discretion. They pile on absurd charges for “conspiracy” for what are obviously minuscule infractions in order to obtain more draconian sentences against non-violent people.

One of the less-bad and more prudent things the Obama administration did was attempt to minimize federal prosecutions of non-violent offenders. The Obama administration also refrained from going after states that legalized medicinal and recreational marijuana. What we have in Jeff Sessions, unfortunately, is someone who appears to be a fanatical true believer who wants to get “tough” on crime by expanding federal power. Fortunately, Congress has gotten a little bit wise to the scam and has responded by cutting Sessions’s budget in some cases, providing the Justice Department zero dollars for combating medical marijuana. But, if Congress really wants to do some good, it will cut the entire Department’s budget by 100 percent.

This article first appeared at Mises.org