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.
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.
Criminal justice experts have known for years that there is no correlation between imposing mandatory minimum sentences and violent crime rates. Simply mandating longer prison sentences for a given crime does not in itself necessarily deter people from committing it. Additionally, overly broad application of mandatory minimum sentences for low-level drug offenses has been one of the primary drivers of swollen prison populations and exorbitant prison costs.
Despite the new directive’s claims, longer sentences and more imprisonment are also inadequate tools to solve the nation’s addiction crises. Recent history has shown that when applied without constraints, they are more likely to sweep in lower-level users than target high-level traffickers. Devoting more resources to rehabilitation and treatment rather than lengthy prison stays is a more effective way to address addiction and reduce the risk of recidivism.
Along the same lines, the new immigration policies will do little to enhance safety. Evidence shows no link between higher crime rates and immigration. Rather, forcing local officials to support federal immigration enforcement can intrude on their prosecutorial and police discretion, impeding their ability to respond to the actual public safety needs of their communities.
For example, it could require them to steer needed resources away from investigating and prosecuting violent or other local crime concerns. It could also push them to use often scarce jail beds to detain immigrants for misdemeanors, rather than individuals accused of dangerous crimes. And it could deter immigrants from reporting crimes, making everyone less safe. In the same vein, redirecting federal law enforcement to focus on immigration could take resources away from combating violent crimes, public corruption, trafficking, and other priorities.
Beyond this array of problems, the new DOJ directive threatens to unravel a promising bipartisan consensus that our criminal justice system focuses too many resources on incarcerating too many people for too long, and not enough resources on rehabilitation and reintegration. One of the high points of this consensus was Trump’s signing of the First Step Act in 2018, which was among the most meaningful federal criminal justice reforms in a generation.
There is still hope for evidence-based solutions. The latest guidance is temporary because the new attorney general has not yet been confirmed, and the nominee, Pam Bondi, expressed some support for bipartisan justice reform policies during her confirmation hearing. Hopefully, a more reasonable approach will prevail, one that aligns with the growing recognition that reflexively favoring harsher charges, more incarceration, and longer sentences is counterproductive. That sensible mindset will help to bring more safety and fairness for all — a goal that Justice Department leaders, regardless of party, should embrace.
