In President Trump’s first week, the new administration revoked Biden-era Department of Justice policies designed to mitigate harsh sentencing practices and racial disparities in the criminal justice system. This reversal, through new interim guidance issued by the acting deputy attorney general, foreshadows the possible return to approaches that have come under bipartisan criticism in recent years for increasing unnecessary incarceration, perpetuating excessive sentences, and wasting government resources without advancing public safety.

As attorney general under President Biden, Merrick Garland had directed federal prosecutors to restrict their use of mandatory minimum charges and requests for longer sentences unless necessary to reflect the seriousness of a defendant’s conduct, danger to the community, or harm to victims. This guidance echoed criticism from across the political spectrum arguing that rigidly harsh sentencing rules can undermine rehabilitation, waste government resources, and increase recidivism. It also addressed ethical concerns, shared by conservatives and liberals alike, about prosecutorial overreach by emphasizing that prosecutors should not use harsher charges as leverage to coerce guilty pleas. Garland also sought to eliminate the unequal treatment of crack and powder cocaine in sentencing, a difference that has caused unwarranted racial disparities. The criticism and rejection of this sentencing disparity, which has no public safety rationale, also has bipartisan support.

New Federal Sentencing Policies

The new policies announced last week threaten a return to the broad use of mandatory minimums, supercharged federal sentences, and racially unequal sentencing. The directive also seeks to expand federal criminal and civil enforcement of immigration violations, including by advancing a legally questionable attempt to strong-arm local officials into participating in federal immigration enforcement.

The moves were presented as efforts to counter threats presented by international criminal groups, undocumented immigrants, and the fentanyl and opioid crises. Unfortunately, there is no evidence that the new policies will improve public safety. In fact, they threaten to do the opposite, resulting in misallocated and wasted resources. They could ultimately reverse positive trends that show recent declines in violent and property crimes as well as drug overdose deaths.

Read the full article about federal sentencing policies by Rosemary Nidiry at Brennan Center for Justice.