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Interview: senator jeff sessions

Senator Jeff Sessions
U.S. Senator (R-Ala), member of the Senate Judiciary Committee; former U.S. Attorney for the Southern District of Alabama.

You can argue whether the guidelines are too severe or not.  I think that's a debatable issue.  And I'm perfectly willing to discuss that.  But if the guidelines called for a certain sentence, I expected my prosecutors to tell the judge the truth and let the judge sentence. What was your legacy in Alabama?

Well, I think what we tried to do is give the taxpayers the best return on their dollar. There are more drug cases than you can prosecute, good cases, and so we just demanded a lot of our prosecutors and ask[ed] them to move those cases and try them effectively, and I think they did a good job of that. We adhered to the sentencing guidelines as passed by the Congress of the United States, which we were ethically and legally bound to do, and I think in appropriate manner, and so over the years, I had some occasion to give a lot of thought to drugs. I chaired a committee for the Department of Justice and have thought about it and wrestled with what are the best things we can do to utilize our resources effectively to reduce illegal drugs in America. ...

I think we made a big difference. ... I think if every state in America and the federal government would maintain an intensive prosecution effort of the most notorious drug gangs in their communities, you can affect drug use that way. That is a serious and significant component of an overall plan to reduce drug abuse.

What about low level traffickers? Are small fry drug dealers getting bigger sentences than they deserve?

Well, what's a small fry? Is a small fry a person who was caught with six ounces of crack cocaine who's been selling drugs for three years before he got caught and a full time drug dealer, maybe extorting people who don't pay him, threatening their lives, maybe has a series of prior convictions. That's what people sometimes call small fry, because perhaps when you caught them they only had a quarter of an ounce or an ounce of cocaine, but testimony proves they were a major conspirator in an organization that dealt kilograms of crack cocaine into the communities for a period of years.

What are mandatory minimums?

The federal sentencing guidelines set some mandatory minimums and they also set ranges in every case within which a judge must sentence. And all I ask[ed] our lawyers to do was to be honest, to present the evidence they have, and ask the judge to sentence appropriately within the guidelines, and they were narrow. It was likely to be 24 to 30 months. If a judge likes you, he'd give you 24 months. If he didn't, he gave you 30. But the guidelines were pretty narrow. Sometimes, the sentences were tough. You'd have a 25-year-old who's been selling for a long time getting 15 to 18 years in jail, pretty tough sentences. But as they say, if you can't do the time, don't do the crime. ...

I've ... expressed my concern that the numbers of prosecutions of powder cocaine, which is often the cocaine that comes in from Colombia and so forth, are down 10% by this Department of Justice. Even though their [numbers of] prosecutors are up, their drug prosecutions have been basically flat, and so I think we need to get more attention to prosecutions ... . If I had to be forced to choose, I would prefer more prosecutions in exchange for a less[er] sentence. I think what we need to do is send a clear message that drugs will not be sold in any community in America. There are areas of cities in America today that everyone knows drugs are being sold openly, and that can not be allowed and if we move aggressively, and Giuliani proved it ... Mayor Giuliani [proved] in New York that if you start with those small cases and clean out the streets and eliminate the bickering and the shootings and the robberies and get those people locked up who are regularly dealing drugs and other criminal activities, your crime statistics go down dramatically.

How does the "substantial assistance" provision work?

... It's particularly helpful in a drug case, because there's no single drug person. ... The drugs come into the country. One person sells it to the next. And they have to confess, in effect, if they've been caught, and tell where they got the drug. Then you investigate that person and that person and pretty soon you can be arresting some of the biggest dealers in the community. And that was always our goal.

That was the concept?

Yes. It was that and the fact that there is no incentive for a person to plead guilty and to confess if there isn't some benefit from it. Because usually these co-conspirators [are] friends, sometimes even relatives, so they don't want to testify against them. But if you can say you're looking at 10 years and we'll recommend five years ... you've got to corroborate your testimony, but we want you to tell what you know, where you've been getting your drugs and who you've been selling your drugs to. That's standard prosecutor practice around America, and I think it's been very effective.

Isn't it destructive to society to have families turning against each other?

It's a tough business, but drugs fray the fabric too. This law and the law of the United States says you cannot sell cocaine or heroin and if you do, you're going to be caught. You can take the sentence they gave you, or you can cooperate and tell who was involved in the business with you.

Isn't it a problem that conspiracy law allows possibly innocent people to be convicted on testimony alone?

That's a theoretical problem; that's not reality. There is not a problem in reality. I've been at it for 15 years, I've seen it time and time again, people do not testify against innocent people, they, reluctantly, only testify against guilty people. It's hard enough to get that, and they usually minimize [the wrongdoing], "Well, I sold to him one time or I bought from him one time," and later you may find out that they had an ongoing relationship for years. But I have not found that to be a problem. Most professional prosecutors have not. Innocent people are not getting convicted under this on any kind of routine basis, and you have to have more than the uncorroborated word of a co-conspirator if you want to get a conviction. You got to have some real proof that corroborates that testimony. You usually look for two, three, four, five people that testify before you indict somebody. One person testifying that another one was a partner, and there's no evidence to back that up, would not be indicted.

Some critics say that it's not fair that higher level conspirators get lesser sentences than lower level participants by "snitching down" on people who have less information, and therefore, less to offer the government.

... Occasionally, it works that way but not normally. If you handle the cases well, the larger dealers ought to get more time. But that does not always happen. Sometimes the larger dealers may well have the opportunity to lead the investigators into an international drug smuggling ring of very significant proportions, and it could, in fact, risk their very life because they're murdered many times, these cooperating witnesses, and so they say, "I'll work under cover, I'll wear a recorder, I'll go meet these people in Miami, these Colombian people, but I want a low sentence. I don't want to spend 20 years of my life in jail, too." ... So sometimes ... a big dealer will get what might appear to some to be a less than appropriate sentence, but that really is the judgment of the prosecutor, and his skill in making sure that he makes good judgments about what kind of recommendations to make, and of course the judge does not have to follow it. ...

Does the system grant prosecutors too much power?

The prosecutor has the power not to recommend a downward departure, but once he does, the judge sets the sentence. ... If the sentence were 10, he may recommend seven and the judge may give five or eight. But it's the judge's final call... .

Does the substantial assistance provision provide an incentive for cooperating defendants to lie?

Well, you have to be careful. A good prosecutor must always be careful, and if there's not corroboration on the testimony of a co-conspirator drug dealer, you should not proceed with the case. You should have absolute confidence that the facts given to you are true. Or you should not proceed.

What is good corroboration?

Well, you have things like mailing records ... maybe admissions on tape. Maybe the person gets the person to talk about the prior drug deal they did. "You remember that last cocaine deal we did, I got five kilos from you, I'd like to get another five" and he said, "Yeah, I got some more, just like last time." So sometimes that corroborates it. Or maybe it's four or five people who say the same thing. ...

Why are there so many federal drug cases in Alabama?

... We used our resources that we had effectively. The state police really like it because you had a Speedy Trial Act and cases were brought to trial within 90 days ... and they got stiff sentences promptly, and they were removed from the community. Whereas, too often in the state courts you would have the circumstance of a person being arrested, being released on bail, and then being tried a year later, maybe waiting another year on appeal before they ever went to jail. The federal system is a very effective system to prosecute criminal cases, and it does a good job at it. You can argue whether the guidelines are too severe or not. I think that's a debatable issue. And I'm perfectly willing to discuss that. But if the guidelines called for a certain sentence, I expected my prosecutors to tell the judge the truth and let the judge sentence. No prosecutor can sentence. Sentences are done by the judges. And, by the way, the probation office does a background investigation to see what the defendant's involvement was, his prior record, and those sorts of things, and advises the judge before the sentence is imposed.

Do you think the sentencing guidelines are too severe?

No, I don't really think it's too severe. I think on occasion people get very stiff sentences [where] maybe lesser sentences would have been appropriate, but it's difficult to say. You pay a price when you have an objective sentencing system. That is, nothing is perfect. If you leave it up to the judges--which we had before--you'd have two defendants for the same offense and one judge would give probation and another fifteen years. I've seen it time and time again. That's why Democrats like Senator Kennedy and Senator Biden and Strom Thurmond [and other] Republicans, joined on this plan to have objective sentencing criteria that I think has fundamentally worked. I believe it's effective. It does allow people, particularly in drug cases, to cooperate and reduce their sentence, which then helps law enforcement eliminate whole gangs of drug dealers. Whole neighborhoods can be freed from the everpresent corner drug dealer, and that has worked and it's good for the country. But it needs to be a part of an entire effort of education, interdiction of foreign imported drugs, and street enforcement. All of those are important.

Is the war on drugs a success?

It was a success when I left office in 1992. After 12 years of prosecuting, drug use among high school seniors had dropped every single year from 1981 through 1991. Now that use is going back up. I'm concerned that drug prosecutions are down, that the president has not sent a clear message about the unacceptability of drugs, and I predicted when he started, he reduced the drug czar's office dramatically, they sent an uncertain trumpet sound about drugs, and sure enough, drug use went up as I predicted, faster than I predicted. It's a tragedy to me to see us lose the momentum that we had gained for over a decade ... .

Is the development of conspiracy law and the substantial assistance provision an erosion of Bill of Rights?

It's not an erosion of the Bill of Rights to catch somebody, record them on tape doing a drug deal and have him go to jail. The law of the United States say if you have 10 kilograms of cocaine you serve five years in jail, and you get what the law says you get. Now, how is that an erosion of the Bill of Rights? This defense lawyer complaint is not valid, in my opinion. The guidelines are tough and if they want to argue about them being too tough, let them do so. But it's not an erosion of the Bill of Rights. ...

Are you at peace with your record?

I feel good about what we did. I feel like the team we assembled were fine prosecutors and fine attorneys who did a good job for the taxpayers. We expected a lot and they worked hard and they did [get] a good return, by prosecuting good cases effectively with very few reversals and good sentencing. So I think that's what we were paid to do and I would expect every United States attorney in the country to do the same. ...

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