WASHINGTON – U.S. Senator Chris Coons (D-Del.), a member of the Senate Judiciary Committee, today questioned Senator Jeff Sessions (R-Ala.) at his hearing to be confirmed as U.S. Attorney General in President-elect Donald Trump’s administration.
Excerpts:
Sen. Coons: “A hitching post was used as a punishment for prisoners…[where prisoners] would be cuffed by both wrists to a pole at chest height, sometimes for seven, eight, or nine hours, unprotected from sun, heat, or rain, without access in some cases to water or even a bathroom. And as the Attorney General, you and the Governor received letters from the U.S. Department of Justice, telling you that Alabama's use of the hitching post in both men and women's prisons was unconstitutional and unjustified. But as I understand it, the use of the hitching post continued throughout your term and you did not act to stop it.”
“In my experience here in six years with you, you have steadfastly opposed all of these efforts at bipartisan sentencing reform. Help me understand why you've blocked efforts at reducing mandatory minimum sentences, at creating opportunities for the revisitation of sentences that may have been overly harsh when initially imposed.”
“You've been one of the few senators to repeatedly and steadfastly vote against congressional attempts to prohibit torture in the military context or the interrogation context, and to repeatedly defend enhanced interrogation practices. Are you clear now that our statutes prohibit torture and if the president were to attempt to override that clear legal authority, what actions would you take?”
Transcript of exchange between Senators Coons and Sessions below:
Senator Coons: Thank you Chairman Grassley, welcome Senator Sessions, congratulations to you and Mary and your whole family on your nomination. The position of Attorney General of the United States is one of the most important positions on which this committee will ever hold hearings. And the next Attorney General of the United States will assume leadership of the Justice Department on the heels of an election in which there were many issues thrown about in the course of the campaign. Some of which have been asked about previously. Calls for a Muslim ban or patrols, issues of a potential Russian cyberattack affecting our democracy, calls for mass deportations and chants at some rallies to "lock her up" for one of the candidates. And given the divisiveness of this election, I think it's critical that the next Attorney General be well suited for this position and this time. And as such, I think, a successful nominee has to be able to persuade this committee that he will act fairly and impartially administer justice, and advance justice for all Americans.
Senator Sessions, we've served on this committee together for six years and we've worked well together on a few issues, on state and local law enforcement issues, on the reauthorization of the Victims Of Child Abuse Act, and on the restoration of funding for federal-public defenders. And I appreciate that partnership. But there have also been many issues on which we disagreed, issues from immigration to civil liberties, to civil rights to criminal justice, voting rights, and torture. And I am concerned about your views on a number of these issues as we discussed when we met last week. So I am grateful to the chairman and to you that we are going to have a full and fair hearing on all of these issues today.
Let me start with some questions about your time when you were Alabama Attorney General and how you understood some direction you received from the U.S. Department of Justice. At that point, Alabama was the only state in the country that handcuffed prisoners to hitching posts, and we talked about this when we met before, and I said I would ask you about this in this hearing. A hitching post was used as a punishment for prisoners perceived as being unwilling to work or participate in the daily lives of the prison, whether serving on a chain gain, or participating in work, and they would be cuffed by both wrists to a pole at chest height, sometimes for seven, eight, or nine hours, unprotected from sun, heat, or rain, without access in some cases to water or even a bathroom. And as the Attorney General, you and the Governor received letters from the U.S. Department of Justice, telling you that Alabama's use of the hitching post in both men and women's prisons was unconstitutional and unjustified. But as I understand it, the use of the hitching post continued throughout your term and you did not act to stop it.
During this same period, the state of Alabama was sued not just about hitching posts but also about chain gains. Prison policies in Alabama said a man could be put on a chain gain if he failed to shave or keep his bed clean, if he disrespected a member of the staff and would end up doing hard labor breaking rocks while being chained together in groups of five, shackled with eight feet of chain between men. And these practices, the case that was brought, demonstrated, were disproportionately affecting African Americans. In later litigation, the practice of using the hitching post was called by an Alabama judge "the most painful, and torturous punishment in Alabama short of electrocution." And in 2002, the United States Supreme Court said using the hitching post was clearly unconstitutional when it was used in Alabama. Can you please, Senator, tell me your view today of the use of the hitching post and chain gain in Alabama corrections and what your view of what action you would take today if these practices were restored?
Senator Sessions: Thank you very much, Senator. That was an issue about the Governor who campaigned and promised that prisoners should work, and he was determined to make that happen. I believe the litigation occurred after my time as Attorney General according to my records, but we could be wrong, I'll supplement the records for you. Certainly, the decision by the Supreme Court and the Federal Courts were after I left office, I believe. So working of prisoners is an issue the we've dealt with in Congress of the United States and by state legislatures. I think good employment of a prisoner is a healthy thing. I do not favor personally this kind of work. I think it should be more productive work, work that can help an individual develop a discipline that they can use when they go on to private life after they leave prison. After the Supreme Court ruling, I think it's crystal clear what the law is that was disapproved, and disallowed and found to be unconstitutional, and I would absolutely follow that as Attorney General.
Senator Coons: In your view, did it take a ruling by the U.S. Supreme Court to clarify that this constituted torture, that it was not just bad corrections policy, it was actually substantively torture of prisoners?
Senator Sessions: Senator Coons, I don't recall ever personally being engaged in the studying of the constitutional issues at stake. It is perfectly legitimate for prisoners to work, but they should be on decent conditions, and I think it should be the kind of work that is productive, and can actually lead to developing good habits. I've heard some evidence on that subject. So I do not have a legal opinion about the case..have not studied it.
Sen. Coons: Just to be clear, what I was pressing you on there was the use of the hitching post, which is a disciplinary measure that had been abandoned by all states but Alabama. It's really reminiscent more of the stocks, the stockade that were used centuries ago and to me somewhat troubling that it continued without challenge.
Let me ask you more broadly, as you know, both Republicans and Democrats on this committee have worked together to address ways in which our criminal justice system is broken. And to address the disparate racial impact of over incarceration that has resulted in the last thirty years. Senator Tillis and I just yesterday published an oped that we wrote jointly about the importance of responsible, balanced criminal justice reform. And Senators Grassley, Cornyn, Lee, and Graham and Flake, all your fellow Republicans, have supported meaningful reforms to address excessive mandatory sentences and incarceration. And in my experience here in six years with you, you have steadfastly opposed all of these efforts at bipartisan sentencing reform. Help me understand why you've blocked efforts at reducing mandatory minimum sentences, at creating opportunities for the revisitation of sentences that may have been overly harsh when initially imposed. And help me understand whether you think it is ever proper for a prosecutor to charge anything less than the most serious offense available and carrying the longest sentence.
Sen. Sessions: Well, that was a lot of question there, Senator Coons. So, the sentencing act has one foundational requirement now, and that is the minimum mandatories. The guidelines have either been made voluntary by the sentencing commission and the courts, and the policies of the Attorney General, so the thing that does stand in place are the minimum mandatories. The minimum that can be sentenced for a certain offense. I offered legislation in 2001. It was opposed by the Bush Justice Department that would have reduced the sentencing guidelines, and in fact a number of years later, unfortunately, essentially could have been done in 2001 when I made a speech in favor of it, made a speech saying what you are saying, that it was disproportionately impacting our African-American community and we needed to fix it and eventually that law passed, so I have a record of doing that, number one.
Number two: so, these other things happened in the meantime. The guidelines were reduced, the Justice Department has reduced its requirements. The Justice Department now allows a prosecutor to present a case to the judge that doesn't fully reflect the evidence that they have in their files about a case. That's a problematic thing. You shouldn't charge, I think it's problematic and difficult, to justify a prosecutor charging five kilos of heroin, when the actual amount was ten, to get a lower sentence. Now there may be circumstances when somehow proof and other issues could justify that, but I would just say as a principle that you gotta be careful about that. Finally, colleagues, sentencing guidelines are within the breast of the Congress. They're mandated by law. I was concerned about what we're seeing, beginning to see, is a rise in crime and, at the same time, a decline in sentences. Sentences are down 19 percent already, as based on…and guideline changes. So, that's a matter interest and I felt we should slow down a bit before we go further andmake sure we're not making a mistake Senator Coons.
Sen. Coons: It is my hope that if you are confirmed and we do make progress on bipartisan criminal justice reform, that as Attorney General, you will carry out whatever legislative decisions might be made by this body.
Last, let me just say that in my six years here, in addition to not working with us on a number of bipartisan proposals on criminal justice reform, you've been one of the few senators to repeatedly and steadfastly vote against congressional attempts to prohibit torture in the military context or the interrogation context, and to repeatedly defend enhanced interrogation practices. Are you clear now that our statutes prohibit torture and if the President were to attempt to override that clear legal authority, what actions would you take?
Sen. Sessions: On your previous question, I would note that Federal prison population has already dropped ten or more percent and will drop another ten thousand this year, so what's happening now is reducing the Federal…population. This law only dealt with the Federal prison population and that represents the most serious offenders. Our Federal DEA and US Attorneys are prosecuting more serious cases.
With regard to the torture issues, I watched them for some time and have been concerned about what we should do about it. This bill that passed last time was a major step. I thought it was really not the right step. Senator Graham, I know, has been an opponent of torture steadfastly and supported a lot of different things, opposed it. It basically took what I was teaching the young soldiers at the Army Reserve Unit as a lecturer, as a teacher, the Army Field Manual, and it made that the law for the entire government, including the intelligence agencies and other departments. I thought that was an unwise step, to take something that directs even the lowest Private to do, to make that the rule for higher ups. But the law is the law, and it needs to be enforced, absolutely.
Sen. Coons: As we both know, there was a bipartisan effort to review our experience with enhanced interrogation and it was concluded that it was not effective.
Sen. Sessions: Yeah, it was and of course Senator Graham was a JAG officer, and I was for a little bit.