Disability Advocates Oppose Sessions Sentencing Directive

barbed wire and fencing

by Andy Jones
May 30, 2017

Over the outcry of disability rights and civil liberties advocates, on May 10, Attorney General Jeff Sessions issued a two-page memorandum to the nation’s 5,000 federal prosecutors [PDF], ordering them to pursue mandatory minimum sentences to the maximum extent permitted by the law.

Starting in the 1980s, Congress passed a number of laws requiring mandatory minimum sentences for a number of federal crimes, thus eliminating judicial discretion in sentencing decisions in such cases. The policies are widely credited for leading to exorbitantly long prison sentences for alleged drug offenders, particularly for people of color and people with disabilities.

In August 2013, then-Attorney General Eric Holder issued two memos, urging prosecutors to pursue lower level charges for first-time and non-violent offenders, as well as for individuals not involved in gangs, cartels, and large-scale drug smuggling operations.

Attorney General Sessions' memo rescinds these two memos, eliminating prosecutorial discretion in such decisions.

The directive provides a limited exception where “circumstances in which "good judgment” would lead prosecutor to pursue lesser charges, though they would first need approval for state attorney generals and other designated supervisors.

“It is a core principle that prosecutors should charge and pursue the most serious, readily approvable offense,” Attorney General Sessions wrote in the memo. “This policy affirms our responsibility to enforce the law, is moral and just and produces inconsistency.

“This policy fully utilizes the tools Congress has given us. By definition, the most serious offenses are those that carry the most substantial guidelines sentence, including mandatory minimum sentences.”

The National Disability Rights Network slammed the directive, saying it would inevitably lead to more people with disabilities being unjustly incarcerations for people with disabilities.

“Due to the failure to accommodate people with disabilities in all aspects of the criminal justice system, from first contact through arrest, trial, imprisonment and re-entry into the community, people with disabilities are already disproportionately represented in the U.S. prison system,” NDRN Executive Director Curt Decker wrote in a statement. “In fact, our nation’s prisons often serve as de facto hospitals for people who are not provided appropriate community based services. Our prisons are filled with individuals with disabilities of all kinds, including a high percentage of individuals with intellectual and significant physical and sensory disabilities.

“We should be working to prevent people with disabilities from being swept up into a system that is ill suited to meet their needs, not increasing the size of the prison gate. States have worked well in recent years to reduce mass incarceration of people with disabilities, but this new Directive will reverse years of that work.”

Disability Rights Washington is the designated protection and advocacy agency in Washington and a member of the National Disability Rights Network.