Plenty of lawyers remain on the sentencing-reform side of the argument. “Prosecuting everyone without having to execute sound judgment is easier in many ways, but isn’t how we truly make our communities safer and how we rebuild trust,” said Miriam Krinsky, a former AUSA in California. “Bottom line, what’s going to happen is this is going to put a lot of people in jail,” Thomas Bergstrom, a former AUSA in Pennsylvania, told the National Law Journal. “It looks like all U.S. attorneys are going to be under the thumb of the attorney general.”
Some lawyers are even scrambling to push cases through before the new policy takes effect. In Florida, the acting U.S. attorney for the state’s Middle District sent defense lawyers a letter telling them they have just two weeks to finalize plea deals.
Leiser, who took over NAAUSA’s reins when Cook left, disputed the notion that his group will have more influence because of Cook’s power in the Justice Department. But he did say, somewhat paradoxically, that he expects its “voice to have more of an impact” because the new administration is “receptive” to members’ positions.
In Leiser’s view, the notion that mandatory minimums too severely punish nonviolent drug offenders with lengthy sentences—which is generally accepted among public-policy experts—is misleading. “Drugs by their very nature are violent,” he told me, echoing a claim Cook made in a Fox News interview last June. Leiser added that drug trafficking “requires the kind of violence that is necessary to survive in competing with other drug traffickers—in getting people to pay you the money they owe you.”
During the Obama administration, the number of drug cases prosecuted at the federal level dropped. According to Justice Department data, there was a 20 percent decline between 2012 and 2015. The federal prison population fell under Holder’s tenure for the first time since 1980. There are currently 188,686 federal inmates, down from a peak of 216,000 in 2013.
Leiser told me Sessions’s directive will ensure the law is implemented evenly in jurisdictions across the country. The cost of incarceration should not be measured in dollars, he said, apparently referring to arguments that mass incarceration hurts public coffers in addition to its other drawbacks. Rather, the cost should be “in terms of the horrific damage that drug addiction has done to our society—not only the people who are addicted, but the people who love them and care for them.”
With sentencing concerns now off its plate, NAAUSA has a policy recommendation coming soon on asset forfeiture, another powerful prosecutorial tool that allows governments to seize the property, cash, and other assets of those accused of crimes. Its use has been heavily criticized by reformers and federal watchdogs as a revenue-generating machine, allowing governments at all levels to make money from people who in some cases won’t ever be charged with a crime. “We believe that asset forfeiture is a good and viable tool, but some changes need to be adjusted to make it fairer,” Leiser said. That position puts NAAUSA in an unusual place: between reformers who loathe the practice and an attorney general who supports it.