by Christopher Kang, ACS Board Member and National Director of the National Council of Asian Pacific Americans
Supporters of Sen. Jeff Sessions’s nomination to become attorney general defend his civil rights record by pointing to his role in passing the Fair Sentencing Act, which reduced the disparity between sentences for crack and powder cocaine offenses. In the context of Sen. Sessions’s overall civil rights record and his opposition to criminal justice reform, even full-throated leadership on this issue would not be enough to overcome concerns about him becoming our nation’s top law enforcement officer, but given efforts to use this law to deflect from that overall record, a closer look is necessary. I was the lead White House legislative affairs staffer on the Fair Sentencing Act and I can tell you that Sen. Sessions’s efforts were only somewhat helpful—and since then have been a far cry from leadership.
Background and History
In 1986, Congress established new sentences for cocaine offenses: possession of five grams of crack cocaine (roughly the weight of two sugar cubes) triggered a mandatory minimum five-year sentence, while trafficking 500 grams (approximately one pound) of powder cocaine triggered the same sentence. This disparity was often referred to as a 100:1 ratio and because more than 80 percent of crack cocaine offenders have been African American, the disparity has had an undeniable racial impact.
In 2001, Sen. Sessions introduced legislation to reduce this disparity to 20:1. However, his approach was to only slightly increase the amount of crack cocaine necessary to trigger a mandatory minimum sentence—and to couple that with decreasing the amount of powder cocaine necessary to trigger a mandatory minimum sentence.
Sen. Sessions’s philosophy—to replace some crack cocaine mandatory minimums with more powder cocaine mandatory minimums—is reflective of his views on criminal justice generally: a dogged belief in mandatory minimum sentences, even as they draw growing bipartisan criticism for fueling our nation’s mass incarceration crisis.
Furthermore, by 2001, a majority of powder cocaine offenders were Hispanic and the problem of mandatory minimum sentences that disproportionately affect one community of color should not be addressed at the expense of another community of color.
The Fair Sentencing Act: Sen. Sessions Has a Chance to Lead…and Doesn’t
When Sen. Dick Durbin introduced the Fair Sentencing Act, he clearly understood the imperative for racial justice and his original bill would have completely eliminated the sentencing disparity, only by increasing the amounts of crack cocaine that would trigger a mandatory minimum sentence. But he also recognized that some compromise would be necessary to persuade Republican Senators to address the disparity.
The first Republican Senator to show real leadership in this effort was...not Sen. Sessions. It was Sen. Lindsey Graham, the top Republican on the Crime Subcommittee and a close law-enforcement ally, who supported reducing the sentencing disparity to 10:1.
Under normal circumstances, it might have been possible to pass this compromise version of the Fair Sentencing Act with strong bipartisan support, but at the time, Sen. Sessions was the top Republican on the Senate Judiciary Committee and he made it clear that he would not allow the bill to move forward without his support. Other Republican members of the Judiciary Committee were privately willing to reduce the sentencing disparity to 10:1, but they ultimately deffered to Sen. Sessions, who insisted on only reducing it to 18:1.
The civil rights goal is elimination of this unjust sentencing disparity, not merely reducing it. Sen. Sessions had a chance to lead here and he did not—and even if he had just followed Sen. Graham, the disparity would be almost half what it remains today.
Sen. Sessions Insists on Leaving Thousands Behind
If Sen. Sessions led from behind in 2010, he has since then relinquished any leadership role on this issue in the civil rights and criminal justice reform movement and instead has become its lead obstructionist. Even more troubling than his insistence on an 18:1 disparity has been his strident opposition to applying the Fair Sentencing Act retroactively.
There has been growing bipartisan consensus that the thousands of people who were sentenced prior to the law’s enactment in August 2010 should be able petition judges for case-by-case consideration in light of the Fair Sentencing Act’s reforms—potentially reducing their overly harsh—and often racially unjust—sentences.
In 2011, the U.S. Sentencing Commission considered whether the changes in federal sentencing guidelines that resulted from the Fair Sentencing Act should apply retroactively. While these guidelines are only advisory (unlike statutory mandatory minimums), reducing them results in significantly shorter sentences for thousands of people. Sen. Sessions vocally led the opposition to retroactivity, but conservatives and progressives on the bipartisan Commission nonetheless united to vote unanimously in favor of it.
Since then, bipartisan legislation has repeatedly been introduced to retroactively apply the Fair Sentencing Act’s reductions in statutory mandatory minimums for crack cocaine offenses. While more and more Republicans have supported retroactivity, Sen. Sessions has taken the lead in the opposite direction, discouraging any effort to provide leniency for these men and women.
In 2013, Sen. Mike Lee—a Tea Party darling—was the lead Republican cosponsor of the Smarter Sentencing Act, which would have applied the Fair Sentencing Act retroactively. The Judiciary Committee reported this bill on a strong bipartisan 15-5 vote—including support from Sen. Ted Cruz. But Sen. Sessions led the fight against it.
In 2015, a leading group of Senate Republicans and Democrats introduced the Sentencing Reform and Corrections Act, landmark bipartisan criminal justice reform legislation that also included Fair Sentencing Act retroactivity. The bill is supported by, among others, Senate Judiciary Chair Chuck Grassley, Senate Majority Whip John Cornyn, Sens. Graham and Lee, as well as leading law-enforcement groups including the National District Attorneys Association and the International Association of Chiefs of Police. But none of this has been enough for Sen. Sessions, who—yet again—leads the opposition.
Earlier this year, a prominent criminal justice reform advocate called retroactivity of the Fair Sentencing Act “the least Congress can do on criminal justice reform.” Apparently, even the least is too much for Sen. Sessions.
If Sen. Sessions truly believes that thousands of people have been sentenced too harshly for crack cocaine offenses—going back to at least 2001 when he first introduced his legislation—why does he oppose allowing case-by-case consideration of more appropriate sentences?
Why does he insist that these people—more than 80 percent of whom are African American—serve draconian mandatory minimum sentences levied years ago, when society, Congress and he himself have evolved to understand that such sentences are unjust?
While Sen. Sessions’s supporters tout the Fair Sentencing Act as his civil rights accomplishment, his active denial of any measure of justice or relief for those sentenced before the law was enacted and his insistence on an 18:1 disparity demonstrate that his record on the Fair Sentencing Act—like his record overall—leave a lot to be desired when evaluating his nomination to become attorney general.