Why some worry Jeff Sessions' crime-fighting approach is out of date

As a prosecutor in Alabama in the 1980s, Jeff Sessions witnessed firsthand the consequences of the rampant violent crime that once plagued the country. To hear him now as US attorney general, the country could be on the brink of plunging back into those dark times.

While acknowledging in a speech early last week that crime rates remain near historic lows, he said there are “clear warning signs – like the first gusts of wind before a summer storm – that this progress is now at risk."

And so far his actions as America’s top law enforcement official suggest a decisive pivot in line with his tough-on-crime reputation.

But some criminologists and former prosecutors worry that Mr. Sessions is taking an outdated approach to head off a problem that may not exist. In the process, they fear, he could stall or even undo the progress and innovation made in fighting crime over the past quarter-century.

Recent data on violent crime present some cause for concern. Although violent crime in the US had been steadily decreasing since the early 1990s and remains near historic lows, it has ticked up recently.

The violent crime rate in the US increased by more than 3 percent from 2014 to 2015, the largest single-year increase since 1991, while the murder rate in 2015 increased 11 percent, the largest single-year increase since 1968. The trend seems to have continued nationwide into 2016, with violent crimes increasing more than 5 percent in the first half of the year, and murders increasing 5 percent, compared to the first half of 2015, according to preliminary data. Homicide rates in certain cities – Baltimore, Memphis, Milwaukee, and Chicago –  are also the highest they’ve been in two decades.

That’s a pattern that Sessions says he’s seen before: “In the early 1960s, crime began to rise in our country; by 1973, crime rates in almost every category ... had doubled over where they were just a decade before,” he said in last week’s speech. “And as the 1970s went on, levels of crime and violence that we once deemed unacceptably high became the ‘new normal’ in America.”

Less visible moves

Four weeks into his tenure, Sessions has made more news for what he won’t be doing as head of the Department of Justice – specifically, his promise to recuse himself from any investigation into Donald Trump’s presidential campaign. Less visible are the moves he’s making to execute President Trump’s campaign promise to “make America safe again.”

He repealed an Obama-era memo directing the DOJ to phase out its use of private prisons. He has hinted at stepping up enforcement of federal drug and gun laws. On Wednesday, he sent a memo to all federal prosecutors saying new guidelines "on charging in all criminal cases will be forthcoming," language that some legal experts think suggests he plans to take a harder line on seeking mandatory minimum sentences.

But some experts are skeptical that the US is headed back to a 1970s-era crime wave. Several of the cities that saw crime surges in 2015 didn’t see them in the first half of 2016, for example, which suggests that those increases may be over – though nationwide the rates continue to go up.

“Pointing to rising levels of violent crime seems to be entirely appropriate for the attorney general to do, and he’s not mistaken,” says Richard Rosenfeld, a criminologist at the University of Missouri–St. Louis. “But it’s a complex issue.”

And while there are some similarities between the 1960s and today, such as widespread civil unrest, there are other pieces of evidence that don’t quite fit.

Take drug use. Sessions has drawn a clear line between the recent crime spike and the ongoing heroin crisis, in some ways evoking the crack cocaine epidemic of the 1980s and '90s. As the heroin market expands, he said last week, “gangs fight for territory and new customers and neighborhoods are caught in the cross-fire.” He has also said there’s more violence around marijuana “than one would think.”

But the parallels are not that clear. There are links between heroin, opioid, and methamphetamine use and violent crime. But a link between the two does not mean that one causes the other, researchers caution. Also, research suggests that crime may actually decrease in states where marijuana has been legalized for medicinal purposes.

The right strategy?

There’s also no guarantee that Sessions’ solutions are the right ones. While New York and other cities pioneered tough-on-crime strategies, the long-term decrease in violent crime was also the result, at least in part, of new tools and techniques developed to help law enforcement deal with the root causes of violent crime.

Instead of simply arresting people after violent crimes occur, prevention programs try to steer young people away from criminal activity. Reentry programs, meanwhile, try to help felons transition back to society and become law-abiding citizens instead of again resorting to criminality. Just bolstering enforcement, experts say, would run counter to many lessons law enforcement has learned during the prolonged crime decline.

Sessions seems to be “fighting battles from decades ago with tools that we have moved beyond as a society,” wrote William Yeomans, who spent 26 years at the DOJ and also served as chief counsel to former Sen. Ted Kennedy (D) of Massachusetts.

“Sessions’ remarks sound more like a political statement designed to gin up fear to justify a return of harsh practices than a serious agenda for meaningful policing," adds Prof. Yeomans, who now teaches at the American University Washington College of Law.

Sessions has also spoken of the importance of “effective prevention programs” and “a humane prison system,” and prioritizing enforcement action doesn’t necessarily mean other tools like prevention and reentry programs will vanish. But given the finite financial and human resources of the Justice Department, “every case you bring means there’s another case you can’t bring,” says Tim Heaphy, a lawyer who spent two decades at the Justice Department and was appointed by President Barack Obama to serve as US attorney for the Western District of Virginia in 2009.

“My fear with Sessions is we’ll go back to, ‘Let’s lock a bunch of people up and do loads of gun cases,’ ” he adds.

Given that a principal duty of the Justice Department has been organizing and leading large-scale investigations beyond the resources of state and local agencies – such as white-collar and organized crime – there is also a concern that Sessions’ preoccupation with gun and drug enforcement could just duplicate things that lower-level agencies are already doing.

“There are a lot of things that only federal prosecutors can do that state and local agents can’t do,” says Mr. Heaphy, who is now a partner at the law firm Hunton & Williams. “There’s no suggestion [Sessions] doesn’t get that, but I hope he sees the department as one team member in a coordinated approach.”