While Other Trump News Dominates Headlines, These Criminal Justice Reform Rollbacks Shouldn't be Ignored
It's easy to lose sight of the effort that President Donald Trump and U.S. Attorney General Jeff Sessions have undertaken to reverse many Obama-era criminal justice reforms, a former federal judge contends.
February 28, 2018 at 10:11 AM
5 minute read
With so much attention devoted to President Donald Trump's fumbling of the #MeToo movement, the Russia investigation and the ballooning deficit, it's easy to lose sight of the relentless effort by Trump and U.S. Attorney General Jeff Sessions to reverse so many of the Obama-era criminal justice reforms. While many political issues jockey for our attention, these rollbacks regularly affect millions of Americans.
In May 2017, the U.S. Department of Justice rescinded former U.S. Attorney General Eric Holder's 2013 memorandum, instructing federal prosecutors not to specify a specific drug amount when charging low-level and nonviolent drug offenders. The Holder Memo gave judges the discretion to impose the sentence they deemed appropriate—rather than a required mandatory minimum term based on drug quantity. This return to mandatory minimum sentences will again increase the prison population, disproportionately affecting African-Americans and Hispanics. This has proven time and again to be a failed tactic in the war on drugs.
In 2015, President Barack Obama placed restrictions on the transfer of military equipment to local police departments following the events in Ferguson, Missouri. In August 2017, Trump's reversal permits the transfer of military equipment such as grenade launchers, bayonets and large-caliber weapons to local police departments. The presence of such military equipment exacerbates tensions and sows distrust between the police and the communities they serve.
In September 2017, the DOJ announced that it would not prosecute Baltimore police officers for civil rights violations in the 2015 death of Freddie Gray, an African-American man who died as a result of a “rough ride” without a seat belt in a police van. While this decision may be debatable in light of the state court acquittals of three of the accused officers, Sessions has repeatedly expressed opposition to the use of consent decrees—a tool often used by previous administrations to achieve much-needed police reform on a consensual basis.
In August 2016, former Deputy Attorney General Sally Yates issued a memorandum directing a reduction in the use of private prisons. According to the memo, as of 2013, nearly 30,000 inmates were held in these facilities. The Yates Memo pointed out that private prisons provide less correctional services, programs and resources than public prisons and do not save substantially on costs. Nor do they maintain the same level of safety and security. It is also known that private prisons often provide inadequate medical care and substandard food and housing. In one of his earliest actions, Sessions in February 2017 rescinded the Yates Memo and is now contracting with substandard, private for-profit prisons. Nonetheless, in his State of the Union message, the president promised to “embark on reforming our prisons.”
Trump in July 2017 appeared to encourage the police to be rougher and tougher in carrying out their duties. In justifying this encouragement, he said, “We have to give power back to the police because we have to have law and order.” He then went on to say, “Please don't be too nice” when making arrests. He also said the laws are stacked against the police and are made to protect the criminal, not the officers. His statements were roundly rejected by many police departments.
In March 2016, the Obama DOJ issued a letter regarding the imposition of fines and fees on indigent defendants that are then used to fund local police departments. The letter suggested that courts should not jail people for nonpayment of fines and fees without first determining whether the defendant was indigent and whether his nonpayment was willful. Sessions rescinded this guidance in December 2017, on the ground that rules should not be made by issuing a letter. This is very thin ground to reverse a much-needed reform.
In 2015, the Obama DOJ issued a directive that blocked the federal government from accepting funds and property obtained by local police departments without a warrant or without criminal charges. In July 2017, Sessions reversed this policy to a chorus of criticism from both the left and the right. None other than U.S. Supreme Court Justice Clarence Thomas, in a decision declining to hear a case involving civil forfeiture, wrote “This system—where police can seize property with limited judicial oversight and retain it for their own use—has led to egregious and well-chronicled abuses.” He went on to say these practices “frequently target the poor and other groups least able to defend their interests in forfeiture proceedings.”
In April 2017, a CBS News poll found that 61 percent of Americans think marijuana use should be legalized, 71 percent think the federal government should not interfere with the states that have legalized it and 88 percent support the medical use of marijuana. Despite this growing acceptance, Sessions has asked Congress not to renew legislation that prevents the federal government from interfering in state decisions regarding medical marijuana. He has also signaled opposition to a 2013 DOJ memo stating that the federal government would largely defer to the states on marijuana enforcement.
Finally, Sessions is seeking to increase the use of capital punishment in federal cases and views it as a “valuable tool.” According to a poll conducted in October 2017, public support for the death penalty is at its lowest level in 45 years. Sessions appears determined to seek the death penalty far more often than his predecessor.
It is easy for this dismal record to escape public attention. That should not be the case. It may not be as troubling as the Russia investigation, as compelling as #MeToo, or as worrisome as the deficit, but it cannot and must not be ignored.
Shira A. Scheindlin, a former federal district court judge, is on the board of The Lawyers' Committee for Civil Rights Under Law.
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