Justice’s Cancelled 'Smart on Crime' Plan Still Has Potential, Watchdog Says

In one of many cases of Washington’s bad timing, the Justice Department’s inspector general on Tuesday released an in-depth evaluation of the Obama administration’s plan to conserve penal resources by focusing prosecutions on the more serious crimes.

But the “Smart on Crime” approach initiated in 2013 by then-Attorney General Eric Holder was largely rescinded in May by Trump administration Attorney General Jeff Sessions.

Even so, wrote auditors under Justice IG Michael Horowitz in their report, “we believe that the lessons learned from the department’s implementation of the Smart on Crime initiative, and the challenges faced in assessing its impact, can be of assistance to the department when seeking to implement its new and any future charging policies and practices.”

Holder’s program—a switch from his earlier harder-line approach to prosecutions—required the development of district-specific prosecution guidelines; refined DoJ’s charging policies regarding drug quantities that trigger mandatory minimum sentences for certain non-violent, low-level drug offenders; and provided guidance to federal prosecutors on the filing of recidivist sentencing enhancements in drug cases, the report noted.

To evaluate the program, auditors did field work from January to July 2016, reviewing documents and data going back to 2012, and conducted interviews and a survey of 94 U.S. attorneys’ district criminal chiefs and assistants.

They reported progress in two key areas: development of district-specific prosecution guidelines focusing resources on fewer but the most significant cases; and skipping charges against many low-level, non-violent drug offenders, if they had no ties to large-scale organizations, gangs or cartels.

“But we also identified several shortcomings in its efforts,” the report continued, ”including some failures to update national and local policies and guidelines and a lack of communication with local law enforcement partners regarding changes to these polices and guidelines in some instances.”

The departmentwide U.S. Attorney’s Manual was not updated to reflect Holder’s approach until January 2017, auditors noted in the report accompanied by a podcast, and some districts failed to consistently report changes to comply with “Smart on Crime.”

But the reviews highlighted basic progress. “Based on our own analysis of [U.S. Sentencing Commission] data… from 2010 through 2015, we found that sentencing outcomes in drug cases had shifted in a manner that was consistent with the first two principles of Smart on Crime. This was reflected by significantly fewer mandatory minimum sentences being imposed in drug cases nationwide, as well as a decrease in mandatory minimum sentences for those defendants who might otherwise have received such a sentence in the absence of the 2013 Holder memoranda.”

The IG recommended that Justice update its manual, clarify and unify central and local guidance on its policies on bringing charges, consult with local partners on priorities and assure that local charging data are gathered accurately for review by departmental officials. Justice career staff largely agreed. But Associate Deputy Attorney General Scott Schools and U.S. Attorney Executive Office Director Monty Wilkinson pushed back slightly on the IG suggestion that it wasn’t already documenting local charging policies, noting that the new Sessions memo stresses a long-standing practice of U.S. attorneys clearing exceptions with superiors.

Under the Sessions directive—which specifically footnoted the Holder 2013 memo as being rescinded--local prosecutors are now directed to pursue all crimes and mandatory sentences aggressively, and to clear any exceptions with superiors. “Prosecutors should charge and pursue the most serious, readily provable offense,” he wrote in the page-and-a-half memo. “The most serious offenses are those that carry the most substantial guidelines sentence, including mandatory minimum sentences.”

Coming after months of bipartisan movement to ease sentencing for nonviolent offences to help reduce prison overcrowding, Session’s redirection was blasted in May by Marc Mauer, executive director of the nonprofit Sentencing Project. “Attorney General Sessions’ decision to end the Smart on Crime initiative, despite warnings of the impact of reinvigorating the War on Drugs from criminologists and advocates, will again fill federal prisons with people convicted of low-level drug offenses serving excessive sentences,” he said. “The new policy shift will have little impact on public safety, while adding exorbitant fiscal and human costs to an already bloated and destructive criminal justice system.”