ARLINGTON, Va. — A federal appeals judge who was on President Trump’s short list for the US Supreme Court has expressed support, at least in part, for Attorney General Jeff Sessions’ new policy that federal prosecutors pursue the most serious criminal charges and penalties possible.
Judge William Pryor Jr., who sits on the US Court of Appeals for the Eleventh Circuit, said in an interview with BuzzFeed News on Wednesday that although it wasn’t his “place to favor or oppose the charging policy,” he thought it could make charging decisions more uniform. Sessions’ policy, released this past week, replaced policies adopted by former Attorney General Eric Holder that urged prosecutors to avoid harsher penalties if possible for nonviolent offenders.
“When the executive follows a charging policy like that, it at least reduces the potential for disparities in charging,” Pryor said. “Maybe there’s a case to be made for lowering some penalties as a check of what prosecutors can charge, but when you charge the most readily provable highest offense, the prosecutors are at least treating similar offenders similarly.”
Pryor isn’t just a federal appeals judge and potential future Supreme Court nominee — he’s also the acting chair of the US Sentencing Commission, which manages the sentencing guidelines that federal judges rely on and analyzes data on criminal justice issues that affect the federal system.
Civil rights groups have blasted Sessions’ charging policy as “backward” and a harbinger of overincarceration. Some Republicans in Congress have come out against the policy, and on Tuesday bipartisan legislation was introduced that would allow judges in certain cases to hand down sentences below mandatory minimums.
Pryor has longstanding ties to Sessions. He succeeded Sessions as Alabama attorney general, and had Sessions’ backing in the Senate when he went through contentious confirmation proceedings in 2003. Sessions reportedly advocated for Pryor to replace the late Justice Antonin Scalia. That nomination went to Tenth Circuit Judge (now Justice) Neil Gorsuch, but if another Supreme Court seat opens up, Pryor could still be in the running — Trump told The Washington Times that he would choose his next high court nominee from his original campaign shortlist.
Pryor spoke with BuzzFeed News after he delivered remarks at George Mason University’s Antonin Scalia Law School on Wednesday about his proposal for overhauling the sentencing guidelines; the event was sponsored by the Charles Koch Institute. Pryor has called for guidelines that are simpler and “presumptive” — not mandatory, but more binding than the current guidelines, which are advisory. Pryor’s proposal is his own, and doesn’t reflect the opinion of the sentencing commission.
Pryor wants to trim the list of factors that judges can consider in deciding whether to boost or lower a sentence; develop broader possible ranges of sentences; reduce the penalties for first-time and low-level nonviolent offenders; and require prosecutors who want to argue that there are aggravating factors that warrant a higher sentence to include them in an indictment and prove them to a jury.
One part of the current system that Pryor would leave mostly intact, and that’s been a source of criticism, is the extent to which judges can look at a defendant’s prior criminal history in crafting a sentence. Critics have said that taking into account criminal history deepens racial disparities in sentencing, since African Americans are more likely to get caught up in the criminal justice system.
Pryor in his remarks on Wednesday acknowledged that African Americans were disproportionately represented in the criminal justice system and had more significant criminal histories on average than other offenders, but he did not think that was a reason to move away from the emphasis on past criminal history during sentencing. The rules already included provisions for excluding consideration of low-level crimes disproportionately prosecuted against African American defendants, he said, and studies showed that criminal history was a strong predictor of the odds that a defendant would re-offend.
Pryor told BuzzFeed News after his remarks that he had shared his sentencing proposal with a few members of Congress who had an interest in sentencing reform — he said he received a kind note in response from Sessions when he was still a senator — but hadn’t gotten any formal pledges of support to date.
Pryor acknowledged in his remarks that the political climate in Congress meant that any major changes to the criminal justice system would be difficult, but that shouldn’t be a reason not to try.
“We are in a highly unusual time ... one that comes along only every generation or so, where there is genuine and sustained bipartisan support for structural sentencing reform,” he said.