AG nominee Jeff Sessions reversed course on harsh drug sentence policy

WASHINGTON — When it comes to long prison sentences for crack cocaine, attorney general nominee Jeff Sessions was for them before he was against them.

Sessions, as a federal prosecutor in southern Alabama in the 1980s and early '90s, was one of the most hard-charging soldiers in the war on drugs who aggressively pursued dealers and users, big and small, and touted the harsh sentences as an effective deterrent.

But as a Republican senator in the 2000s, he grew critical of a cocaine sentencing policy that was tougher on crack than powder and the racial imbalance it created in federal prisons around the country.  

The severe punishments for the cheap crystallized cocaine, compared to the more expensive powdered version, had become enough of a racial blight on the criminal justice system that even law-and-order conservatives like Sessions wanted reform. Sessions had seen firsthand how five grams of crack drew a mandatory five-year sentence, while it took 500 grams of powder to trigger the same sentence.

He introduced legislation in 2001 to narrow the gap.

“I think we're at a point now where this 100-to-1 disparity that does fall heavier on the African-American community, simply because that's where crack is most often used, has got to be fixed,” Sessions said during the debate in the Senate Judiciary Committee.

Sessions’ role — including hammering out a final deal in the Senate gym with Illinois Democratic Sen. Dick Durbin — was hailed for its man-bites-dog twist: An enthusiastic drug war lieutenant was acknowledging that prisons were clogged with low-level offenders, many of them black, who needed treatment, not decades of incarceration.

Now, as President-elect Donald Trump’s nominee for attorney general, Sessions’ views on race and criminal justice are under scrutiny. Allies are highlighting his work to reduce the crack/powder disparity as proof of his commitment to racial justice.

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“Senator Sessions has been intimately involved in assuring that even as the department combats the scourge of illegal drugs, the penalties imposed on defendants do not unfairly impact minority communities,” five former U.S. attorneys general wrote to congressional leaders Dec. 5.

The Senate Judiciary Committee plans to hold a confirmation hearing for Sessions starting Jan. 10. This is the same panel that rejected Sessions for a federal judgeship 30 years ago amid concerns about racial bias.

But well before Sessions was in Washington arguing that the mandatory sentencing disproportionately affected African Americans, he was in Mobile, Ala., prosecuting more crack cases than almost every other district in the country.

In 1992-93, one year before he ran for attorney general of Alabama, only the District of Columbia had more federal crack convictions per capita than Sessions’ Southern District of Alabama, according to a Mobile Press-Register report in 1997 based on data from the U.S. Sentencing Commission. From 1992 to 1995, the district had more drug cases per capita than the Miami-based Southern District of Florida.

"He would say that these cases were sent to me and I had to try them, but under his tenure, there were probably more people prosecuted than any other U.S. Attorney in the history of the Southern District," said Frederick Richardson, vice president of the Mobile City Council. Richardson, an African American who researched the effects of the drug wars in Mobile, was critical of the high number of drug conspiracy convictions under Sessions, but he supported Sessions' role in scaling back the sentences for crack.

"He has changed," Richardson said.

Sessions was appointed U.S. attorney by President Ronald Reagan in 1981 and held the office until May 1993, when he left to clear the way for President Bill Clinton to appoint a successor.

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Mobile’s geography was a key factor in the statistics: a port city with one main east-west interstate route between Texas and Florida is a prime spot for federal drug enforcement agencies to camp out. But Sessions was also a zealous prosecutor who actively pursued even minor drug cases, often working with local law enforcement along the way.

“It does not hurt to go into a town like Evergreen and take out 25 or 30 crack peddlers,” Sessions told the Press-Register. By doing so, the cases were handled in federal court, where judges had to follow the mandatory sentencing rules.

In defending his office’s focus on drug prosecutions, Sessions said in 1997 that other U.S. attorneys should follow his example: “If I were (U.S.) attorney general, the first thing I’d do is see if I couldn’t increase prosecutions by 50 percent with the staff I had.”

After joining the U.S. Senate, Sessions himself acknowledged the harm done by mandatory federal sentences for possessing even small amounts of crack.

“I believe my district is as tough, as effective, as any prosecuting office in America on drugs. That was our goal. And we worked it every day,” Sessions said in 2006. “But in my best judgment, there is valid concern about the disparity between crack and powder, that it implicates racial concerns in America, and it also is not an effective use of our prison beds and detention facilities.”

One of the people snagged in Sessions’ drug dragnet was Stephanie Nodd. She was a young, first-time offender, caught helping people who were selling crack in Mobile. She was sentenced in 1990 to 30 years in prison.

“Putting 23-year-old single mothers away for 30 years, I would hope it gnaws at your conscience and causes you to reconsider,” said Kevin Ring, vice president of Families Against Mandatory Minimums.

Nodd served 21 years. She won early release when the U.S. Sentencing Commission made the new crack/powder guidelines — championed by Sessions — retroactive, freeing people who were stuck in prison sentences that Congress no longer thought were warranted.

Ring said a key question is why Sessions agreed to fix the crack/powder disparity but has resisted other reforms to the mandatory sentencing rules, including those championed by his fellow conservatives in the Senate.

“I’m holding out hope he actually believes prosecutors should exercise individual discretion,” Ring said.

Arthur Madden, a criminal defense attorney in Mobile, said Sessions was not solely to blame for bringing so many federal drug cases subject to mandatory minimum sentences. The harsh sentencing policy had bipartisan support when Congress enacted it, a reaction to the drug epidemic of the 1980s.

“It just didn’t work,” Madden said. “And I think Jeff learned that. He’s not the only one. It doesn’t mean that people who were doing it in real time were bad, I think they just bought into the program. He wasn’t alone.”

The Justice Department under former president George W. Bush did not support the bipartisan legislation to reduce the crack/powder sentencing disparity, and the idea languished for many years on Capitol Hill. When the Fair Sentencing Act finally became law in 2010, it reduced the disparity from 100:1 to 18:1. It also eliminated the minimum mandatory sentence for simple possession.

As nominee for attorney general, Sessions was asked to submit to the Senate Judiciary Committee a list of honors and awards he received. His original questionnaire omitted one. In a supplement to the questionnaire he filed Wednesday, Sessions listed the Attorney General’s Flag Award he received from Attorney General William Barr in 1992 “for significant achievement in the war on drugs.”

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