Senate Judiciary Committee
When Jeff Sessions, Donald Trump's choice for attorney general, was nominated as a federal judge in 1986, one of the comments that got him into trouble was a joke about the Ku Klux Klan. A federal prosecutor testified that Sessions, at the time the U.S. attorney for the Southern District of Alabama, had said he thought the KKK "was OK until I found out they smoked pot." Although Sessions, now a senator from Alabama, confirmed that story, in light of his longtime obsession with the evils of marijuana the anecdote reads like a joke about him. After all, this is the same man who recently opined that "good people don't smoke marijuana."
Sessions' retrograde views on marijuana, his opposition to sentencing reform, and his enthusiasm for civil forfeiture do not bode well for drug policy under Trump, who campaigned on a "law and order" platform that was consciously modeled after Richard Nixon's. Trump promised that "safety will be restored" the day he takes office, but he was pretty vague about what that means. It is more than a little disconcerting that an unreconstructed drug warrior like Sessions will help him fill in the details.
Sessions, who pines for the days when Nancy Reagan's "Just Say No" campaign helped "create a hostility to drug use," was outraged when President Obama conceded, in a 2014 interview with The New Yorker, that marijuana is less dangerous than alcohol. "I have to tell you, I'm heartbroken to see what the president said just a few days ago," Sessions told then-Attorney General Eric Holder at a Senate hearing. "It's stunning to me. I find it beyond comprehension….This is just difficult for me to conceive how the president of the United States could make such a statement as that….Did the president conduct any medical or scientific survey before he waltzed into The New Yorker and opined contrary to the positions of attorneys general and presidents universally prior to that?"
At a hearing last April, Sessions bemoaned the message sent by marijuana legalization. "I can't tell you how concerning it is for me, emotionally and personally, to see the possibility that we will reverse the progress that we've made," he said. "It was the prevention movement that really was so positive, and it led to this decline [in drug use]. The creating of knowledge that this drug is dangerous, it cannot be played with, it is not funny, it's not something to laugh about, and trying to send that message with clarity, that good people don't smoke marijuana."
In both of these cases, we see Sessions' insistence that truth be subordinated to the anti-drug cause. It is beyond serious dispute that alcohol is more dangerous than marijuana, as measured by acute toxicity, impact on driving ability, frequency of addiction, and the long-term effects of heavy consumption. But Sessions thinks the president should not admit that, lest he encourage teenagers to smoke pot. It is patently absurd to suggest that everyone who tries cannabis—which includes at least two-fifths of the population and probably more like half, allowing for underreporting by survey respondents—is a bad person. But Sessions thinks the government should "send that message with clarity," the better to discourage teenagers from smoking pot.
Sessions did not explicitly say the federal government should try to reverse marijuana legalization by challenging it in court (an iffy proposition) or by raiding state-licensed cannabusinesses. But he clearly did not approve of the Obama administration's tolerance for diverse marijuana policies. "It's far more important than just the details about whether federal prosecutors start prosecuting marijuana cases in Colorado," he said. "Colorado was one of the leading states that started the movement to suggest that marijuana is not dangerous. And we're going to find it, in my opinion, ripple through the entire American citizenry, and we're going to see more marijuana use. It's not going to be good….We need grownups in charge in Washington to say marijuana is not the kind of thing that ought to be legalized….The Department of Justice needs to be clear, and the president needs to assert some leadership."
Now that Trump has picked Sessions to head the Justice Department, we may get a clearer idea of how far Sessions wants to go in pressing the point that "marijuana is not the kind of thing that ought to be legalized." Trump himself, while expressing concern about the consequences of legalization, has repeatedly said the issue should be left to the states—a position that has even broader public support than legalization itself. Recent national polls indicate that most Americans (60 percent, according to Gallup) think marijuana should be legal, while most Republicans continue to oppose legalization. But even among Republicans, most (70 percent, according to a CBS News poll conducted last April) think the feds should not interfere with state decisions in this area.
"While the choice [of Sessions] certainly isn't good news for marijuana reform," says Marijuana Majority Chairman Tom Angell, "I'm still hopeful the new administration will realize that any crackdown against broadly popular laws in a growing number of states would create huge political problems they don't need and will use lots of political capital they'd be better off spending on issues the new president cares a lot more about." As a practical matter, especially now that legalization has spread to eight states that include one in five Americans, the feds cannot stop the collapse of marijuana prohibition. But if Trump breaks his promise to respect state choices and gives Sessions free rein, the Justice Department could make a lot of trouble for state-legal cannabusinesses. In any case, it is hard to imagine Sessions supporting efforts to remove federal burdens on those businesses, which include not just the threat of prosecution and forfeiture but tax discrimination and barriers to banking.
It also seems unlikely that Sessions will be lending his support as attorney general to legislation that reduces penalties for drug offenses, as Holder and his successor, Loretta Lynch, did. Sessions, along with every other senator, supported the Fair Sentencing Act of 2010, which shrank the sentencing gap between the smoked and snorted forms of cocaine. He nevertheless opposed applying the reduced crack penalties to people who committed their offenses before the law was passed but were sentenced afterward. In a 2011 letter to Holder, Sessions complained that "reducing sentences is not tough, creates unpredictability, harms public safety, promotes recidivism, and increases the negative, often devastating effects of illegal drugs, both for those whose sentences are reduced and in the consequent diminished deterrent effect on other potential drug offenders." Never mind that Sessions himself had supported shorter sentences, agreeing that the pre-2010 penalties were too severe.
More recently, Sessions was a leading opponent of the Sentencing Reform and Corrections Act, which would have made shorter crack sentences retroactive, reduced various other drug penalties, tightened the criteria for certain enhanced punishments, and broadened the criteria for the "safety valve" that lets some drug offenders escape mandatory minimums. "Drug trafficking can in no way be considered a 'non-violent' crime," he and three other senators declared in a letter to their colleagues last February. "It is an industry built on an entire edifice of violence, stretching from the narco-terrorist organizations in South America to the drug deal enforcers that afflict too many U.S. communities." Sessions thus rejects a central point of agreement underlying bipartisan support for sentencing reform: that there is an important distinction between violent criminals and offenders who engage in peaceful activities arbitrarily proscribed by Congress.
Sessions defends civil forfeiture as well as draconian drug sentences. As Robert Everett Johnson of the Institute for Justice pointed out last year, Sessions does not think it should be any harder than it is for the government to take property supposedly linked to drug offenses, which it can do through civil forfeiture without even charging the owner, let alone convicting him. At a hearing on "The Need to Reform Asset Forfeiture" in April 2015, Sessions said it's obvious that "criminal violators ought not to be able to keep their ill-gotten gains." He averred, without citing any evidence, that "95 percent" of people who lose money to forfeiture have "done nothing in their lives but sell dope."
Sessions, who at one point during the hearing accidentally told the truth by calling the targets of forfeiture "individuals whose money is stolen," rather alarmingly misstated the standard of proof in federal forfeiture cases, which is "preponderance of the evidence," meaning the government must show it's more likely than not that a seized asset is connected to a crime. He instead said the standard for completing a forfeiture (assuming the owner has the resources to challenge it) is "probable cause," which is what the government needs to seize the asset in the first place. Probable cause, which is also the standard for a search warrant, is substantially less demanding than preponderance of the evidence and much less demanding than proof beyond a reasonable doubt, which is required for a criminal conviction. Sessions nevertheless said probable cause is "appropriate for forfeiture cases" and "it's unthinkable that we would make it harder for the government to take money from a drug dealer."
Sessions added that there is nothing wrong with letting law enforcement agencies keep the proceeds of forfeitures they pursue, a policy that has been widely criticized for warping police priorities. He faulted the Obama administration for curtailing the use of federal forfeiture law by state and local agencies, who can use it to evade state restrictions. In short, Sessions thinks civil forfeiture is fine the way it is and sees no need for reform.
"Jeff Sessions is a drug war dinosaur, which is the last thing the nation needs now," says Ethan Nadelmann, executive director of the Drug Policy Alliance. Aaron Hertzberg, partner and general counsel at CalCann Holdings, calls Sessions "the worst pick that Trump could have made for attorney general [when] it comes to marijuana issues."
I'm not sure about that. Chris Christie, who during his campaign for the Republican presidential nomination repeatedly vowed to reverse marijuana legalization in states such as Colorado, might well have been worse. In any case, given the the political costs it would entail, a full-scale crackdown on state-licensed marijuana businesses seems unlikely. But so does normalization of taxes and banking for the cannabis industry. Likewise sentencing reform, which Sessions helped doom this year as a senator, and civil forfeiture reform, which he deems unnecessary. Even if Sessions does not take us back to the days of Just Say No, he can do plenty of damage by blocking further progress in de-escalating the war on drugs.
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