This week, the Justice Department confirmed the success of Obama’s audacious criminal justice reform agenda: He will be the first American president in 40 years to leave office with a smaller federal prison system than when he started.
The Obama administration inched its way toward that goal via many incremental changes in policy — from commutations to the DOJ’s revamped sentencing recommendations — but the bulk of the work was built on decades of activism against the costly, racist, and ineffective boondoggle known as the War on Drugs.
Even as reformers take heart in the decline of the prison population and concurrent fall in crime rates, the Trump administration is poised for a return to hostilities in the drug war, as Congress begins confirmation hearings on Trump’s pick for attorney general, Alabama Senator Jeff Sessions.
As a country, we have grown tragically sophisticated about drug use and abuse. When it comes to drug use, Americans largely accept that recreational marijuana is not a threat to the social order. Twenty-six states have decriminalized it in some form, with three states voting to legalize recreational use on the same night that the rest of the country elected Trump. Legally and culturally, pot is no longer an illicit pleasure; it’s about as transgressive as dad jeans. Regarding abuse, the opioid epidemic has brought drug addiction into the lives of enough middle-class white people that the disease has shed much of its stigma, and law enforcement has been forced to consider alternatives to simply locking up every addict they come across.
In light of these shifts, Sessions’s recalcitrant attitude toward drug-war disarmament is almost amusingly quaint, right down to his protestations that pot “is not funny, it’s not something to laugh about.” He has railed against pot in the manner of a Reefer Madness cosplayer, warning at one point that Obama’s admission of toking up as a young man put lives at stake. He thinks “good people don’t smoke marijuana.” When James Comey cracked that the FBI’s ban on marijuana use might inhibit the agency’s ability to hire the best hackers, Sessions accused Comey of “undermin[ing] our ability to to convince young people not to go down a dangerous path.”
But Sessions’s earnest just-say-no shtick gets a lot less funny when it overlaps with his equally backward attitudes on race — which is most of the time — though not always as explicitly as when he said it was rumors of pot-smoking that turned him against the Klu Klux Klan. While it’s true that Sessions wound up supporting measures to reduce the discrepancy in sentencing for crack versus powdered cocaine, he has persisted in arguing that the solution to drug crime is to treat drug users as criminals and has stonewalled major legislative attempts at policy reform. In 2015, he warned fellow senators that shifting focus from jails to treatment (as part of the Sentencing Reform and Corrections Act) was “weaken[ing] criminal law in the middle of a crime wave.” No such “crime wave” exists, statistically speaking, but facts didn’t keep the president-elect from echoing Sessions’s charge on the campaign trail.
The public is well aware of Trump’s and Sessions’s shared enthusiasm for deporting undocumented immigrants — but it’s less clear whether Trump shares Sessions’s equally unbridled eagerness to jail nonviolent drug offenders. Once upon a time — 1990 — Trump argued that drugs should be legal: “You have to take the profit away from these drug czars.” But Trump’s only direct statement on drug policy recently was a halfhearted regurgitation of all-purpose Republican talking points. He thinks recreational marijuana legalization is a “bad idea” but wants to “leave it up to the states.” This amounts to a passive endorsement of the Obama stance that seems — like all Trump policy positions — unlikely to withstand a light breeze, much less a blowhard like Sessions.
Remember, Trump kicked off his campaign by blaming Mexico for sending drugs as well as rapists our way. As a candidate, Trump repeatedly vowed to address the nation’s opioid epidemic by “stopping drugs at the border,” which would do little to address the spike in prescription drug dependence, and suggests that he — like Sessions — thinks that drug crime is a problem of supply, not demand.
As attorney general, what can Sessions actually do? He will undoubtedly reverse the Obama administration’s directions to local prosecutors that advised against piling on penalties against low-level and first-time drug offenders. Experts think it’s unlikely that he will pick a legal fight with the states that have already legalized or decriminalized marijuana, however. The Obama administration’s 2013 directive to states that it would use federal drug statutes to prosecute “criminal enterprises” rather than state-regulated dispensers has allowed a multibillion dollar industry to flourish — even Republican lawmakers have recognized the difficulty in unringing that bell. A Constitutional battle with states would be expensive for all parties ... and might also draw attention to the areas where “states’ rights” suits Sessions just fine (*cough* Voting Rights Act *cough*).
Trying to enforce federal drug laws by raiding every legal dispensary across the country would be a tedious approach, anyway. It would be more efficient for Sessions to simply use the same kinds of levers the Obama administration did to end the drug war: offer incentives (increased funding, block grants) to local law enforcement that craft policies in line with his thinking, and punish those that don’t. This could produce an even wilder patchwork of drug laws than already exists — legal weed in Colorado and mass arrests in Missouri — but why should that stop Sessions? Unequal outcomes were never an accidental byproduct of the War on Drugs; they were built in to it.
After all, this return to a “law and order” approach to drug use comes with Trump’s rather loose relationship to the law himself. He contends that his own conflicts of interests are immaterial, and that dodging the government’s oversight (at least when it comes to tax laws) makes him “smart.” Obvious flaws in the distribution of justice only serve Trump — authoritarians like to keep people guessing about which laws get enforced, and why.