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Does US need a new crime crackdown? Prosecutors see generational divide.

Attorney General Jeff Sessions is among those who say tough sentencing brought down crime before, and can do so again. For a younger generation, what's more visible is the human toll of mandatory minimum sentences on small-time violators.

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Brennan Linsley/AP/File
A guard tower looms over a federal prison complex which houses a Supermax facility outside Florence, in southern Colorado. Attorney General Jeff Sessions has directed the nation鈥檚 federal prosecutors to pursue the most serious charges possible against the vast majority of suspects, a reversal of Obama-era policies that is sure to send more people to prison and for far longer terms. The move, announced in a policy memo sent to U.S. attorneys late on May 10, has been expected from Sessions.

At the core of the debate over the role of prosecutors in keeping America safe, some experts and prosecutors believe, is a generational divide.

Attorney General Jeff Sessions represents one view, epitomized by his decision to restore mandatory minimum sentences for drug offenses on Friday 鈥 undoing guidance aimed at reducing prison overcrowding.

Mr. Sessions framed the guidelines change as a return to the Justice Department鈥檚 proper mission.

鈥淚t is a core principle that prosecutors should charge and pursue the most serious, readily provable offense,鈥 he said in the memo. 鈥淏y definition, the most serious offenses are those that carry the most substantial guidelines sentence, including mandatory minimum sentences.鈥

On the other side is a different breed of often younger prosecutors, who believe that a more nuanced approach is needed, especially regarding nonviolent drug offenses. Under former President Barack Obama, that view took hold more broadly, inspiring bipartisan reform efforts even in red states like Georgia.聽Take Texas Harris County District Attorney, Kim Ogg, who along with Houston city officials, said this year that most marijuana cases would no longer be subject to arrest or prosecution. Instead, offenders would pay a fine and enter a diversion program.

鈥淎t 107,000 cases over the last 10 years, we have spent in excess of $250 million dollars collectively prosecuting a crime that has produced no tangible evidence of improved public safety,鈥 Ms. Ogg in February. 鈥淸T]he collateral damage to our workforce is immeasurable ... we have disqualified, unnecessarily, thousands of people from greater job, housing, and education opportunities by giving them a criminal record for what is in effect a minor law violation.鈥

This shift in thought has been crystallizing in recent years, all around the country 鈥 including within the ranks of prosecutors and conservative lawmakers. The deeper debate 鈥 especially over how to prosecute nonviolent drug offenses 鈥 comes amid troubling spikes in violence in small numbers of cities from Los Angeles to Baltimore, from Chicago to Memphis. It also comes after multiple studies that show disproportionate penalties for minorities caught in the criminal justice system.

However, it runs in direct contrast to the direction Sessions appears to be taking as America鈥檚 top law-enforcement official. While his directive may only聽 affect those tried in federal courts, as opposed to the much larger state system, it illustrates a broader conflict pervading the debate over how the justice system should operate.

鈥淪essions and the US attorney鈥檚 office are going backward in the direction that we came from, which is kind of sad,鈥 says Robert James, a former Dekalb County district attorney, who is now in private practice. During his six years as the Dekalb County D.A., he spearheaded the county鈥檚 Anti-Recidivism Court, where participants, ages 17 to 25, take part in an intensive one-year life skills program, and where all charges are dropped upon graduation. At the same time, he led an anti-gang task force that prosecuted national gang figures trying to consolidate smaller youth gangs in the county.

The call for a harder line

Other former prosecutors, however, think Sessions is right to take a harder line.

鈥淒uring the era of a criminal justice system with mandatory minimum sentencing, the crime rate plummeted,鈥 says Bill Otis, a former attorney in the US Attorney鈥檚 Office for the Eastern District of Virginia.

鈥淭here are thousands of people, if not millions of people, who did not become crime victims鈥 because of tougher policies, continues Mr. Otis, now a professor at Georgetown University in Washington. 鈥淎n enormous amount of money was saved and an even bigger amount of human suffering averted because of the crimes an incarcerated inmate wasn鈥檛 able to commit鈥 Others say we should give people a second chance鈥nd [I] can鈥檛 disagree with that, but you also have to ask, a second chance to do what?鈥

Sessions himself referenced his experience as a prosecutor in Alabama in the 1980s soon after being confirmed as attorney general, in a speech that seemingly previewed his tough-on-crime approach. 鈥淎s someone who lived through that dark time in our history,鈥 he said, 鈥淚 can assure you: We do not want to go back to those days.鈥

Coming from anyone who has worked on the front lines of the violent crime epidemic of the 1980s, that point of view is understandable, says John Pfaff, a criminologist at Fordham University who has researched state prosecutors.

鈥淭hey saw what the failure to respond aggressively in the 鈥70s led to, so they鈥檙e skittish about going to what they saw as soft approaches,鈥 he adds.

But with violent crime only having increased for two years, and still hovering near historic lows, he thinks it is too early to declare a trend, not to mention a punitive response to it. 鈥淲e shouldn鈥檛 start resorting to brute force tactics,鈥 Professor Pfaff says. 鈥淎t this point we should try to be more sophisticated and more careful in how we approach it.鈥

Otis says that the two shouldn鈥檛 be mutually exclusive. While he supports the move back to the tougher sentencing guidelines, he thinks it should be accompanied by programs that can help inmates succeed once they鈥檙e released.

While critics have decried a return to mandatory minimum sentences, legal experts say they don't question the motives of those who seek that return. 鈥淭his is not a cynical, made-up set of reasons,鈥 says Ronald Wright, a professor at the Wake Forest University School of Law. 鈥淭he people who pursue this strategy are sincere and well-intentioned.鈥

But the proportion of people who share Sessions鈥 views in the prosecutorial community has been shrinking, Professor Wright says.

鈥淓xperience has given us a lot more information about how huge prison systems work and don鈥檛 work,鈥 he adds. 鈥淪o the number of prosecutors who embrace prison as central to our response, that number has gone down.鈥

The view from Lakewood

Some of the reasons for that can be seen in neighborhoods like Lakewood in Atlanta.

Taking a break at a ramshackle garage to pet a pit bull, Tre Burse says he鈥檚 fully aware of potential for violent crime. In fact, his own brother is scheduled to get out of state prison this week, for car theft.

But Mr. Burse and his buddies 鈥 Mike Edge and Ronald Walters 鈥 scoff at Sessions鈥檚 order, which will affect about 10 percent of all criminal cases in the US.

What Lakewood needs isn鈥檛 less prosecutorial discretion and more prison time, they agree, but more effective punishment and increased opportunity. 鈥淟ocking everybody up for everything didn't work and it doesn't work,鈥 says Mr. Edge.

Violent crime began decreasing in the 1990s after prosecutors began pursuing longer sentences, but more recent empirical analysis suggests that higher incarceration rates were at most a minor contributor to the decline. A from the National Academy of Sciences concluded that increased incarceration rates 鈥渙n balance鈥 had a 鈥渕odest鈥 effect, while other research has shown that long prison sentences can lead to increased recidivism and cascading negative consequences on an offender's family and community.

Since 2007, 23 states have passed sentencing-reform legislation, according to . Some of this legislation includes revisions to mandatory minimums, and the changes do not appear to have negatively affected public safety.

Georgia's example

In Georgia, for example, Republican Gov. Nathan Deal has introduced a slew of criminal justice reforms, including withholding salary raises for prosecutors in counties until they establish local drug and mental health courts to help struggling Georgians avoid jail time. Those reforms may have helped Burse鈥檚 brother after prosecutors decided not to attach potential charges for an earlier robbery committed separately by his friends.

As a result of such discretion, prison populations have dropped in the state. In Dekalb County, even as the per capita crime rate continued to drop last year, county officials raised concern about an uptick in violent crime, including armed robbery and murder.

Mr. James, who lost his reelection bid in November, is concerned that Sessions鈥 position could stall reforms in some states, and could empower some local prosecutors to stop taking extenuating factors into consideration.

鈥淵ou can talk to district attorneys in Chicago and Baltimore, and they will tell you that you can鈥檛 just go in and lock everybody up and expect the neighborhood to be better,鈥 he says.聽鈥淵es, you have to be tough when required. But you have to also understand that criminal justice can do more harm than good.聽I saw it myself when I was growing up [during the height of the war on drugs]. I I have friends who have been in prison. You lock these young men up for low-level offenses ... and what ends up happening is they get caught up in a cycle of crime, they鈥檙e warehoused, and when they鈥檙e cut from the warehouse they return home with a scarlet letter 鈥楩,鈥 for felony, on them....

鈥淲e鈥檝e got 30 to 40 years of history, of precedent, that says it鈥檚 flat-out not true鈥 that putting lots of people in prison for a long time solves drug and crime problems, he adds. 鈥淚f that were the case, then these neighborhoods would have been safe a long time ago.鈥

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