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Trump and Sessions’s quiet success: reinvigorating the federal war on drugs

Obama pulled back the federal war on drugs. Trump and Sessions are undoing that work.

President Donald Trump and Attorney General Jeff Sessions during Sessions’s swearing-in ceremony.
President Donald Trump and Attorney General Jeff Sessions during Sessions’s swearing-in ceremony.
Saul Loeb/AFP via Getty Images

President Donald Trump’s administration over the past year has largely been consumed by scandals, tweets, immigration restrictions, a failed effort to repeal Obamacare, and the recently enacted Republican tax plan.

But in between all these issues and the media coverage surrounding them, the administration has proven adept at getting things done on a topic that’s received much less attention: the war on drugs.

Since taking the reins last year, Attorney General Jeff Sessions has used his position at the US Department of Justice to re-escalate anti-drug policies that had been pulled back by his predecessors during President Barack Obama’s time in office. Individually, many of these moves may have seemed small. But over the past year, they have built up to what one drug policy reform advocate characterized as a “creeping escalation of the war on drugs.”

“During his nomination, we warned that if [Sessions] were to be confirmed, he would pursue a hardline agenda,” Grant Smith, deputy director of national affairs at the Drug Policy Alliance, told me. Smith argued that’s exactly what’s happened, citing Sessions’s actions in the past year: “It is a methodical escalation of the war on drugs by Attorney General Sessions.”

Those on the other side of these issues agree that the Trump administration has been successful in pursuing its “tough on drugs” agenda. Sessions “has remained focused, has remained diligent in his endeavors,” Jonathan Thompson, executive director of the National Sheriffs Association, told me. “We’re pleased with the attorney general’s activities and actions thus far. We think he recognizes the reality of the world we’re in today.”

The latest example: Sessions on Thursday pulled back Obama-era policies that allowed states to legalize pot — as it remained illegal at the federal level — with little to no federal interference.

This was only one of the many moves Sessions has made in the past year alone, including tasking prosecutors with imposing tougher prison sentences on even low-level drug offenders. The Justice Department has also taken steps that encourage more aggressive policing and provide less federal oversight for police abuses.

The changes amount to nearly a full rollback of the many steps the Obama administration took to reshape the nation’s war on drugs. The research indicates that harsher law enforcement efforts on drugs have a little to no effect on crime and drug use.

As Mark Kleiman, a drug policy expert at the Marron Institute at New York University, previously told me, “We did the experiment. In 1980, we had about 15,000 people behind bars for drug dealing. And now we have about 450,000 people behind bars for drug dealing. And the prices of all major drugs are down dramatically. So if the question is do longer sentences lead to a higher drug price and therefore less drug consumption, the answer is no.”

It’s unclear how much impact the Trump administration’s new direction will have on policy on the ground. Official statistics, for example, indicate that the federal prison population actually fell in the past year, from more than 192,000 in 2016 to less than 184,000 this month. This could change as federal law enforcement is given more time and leeway to implement Trump and Sessions’s guidances, but that remains to be seen.

And in general, the federal government plays a relatively small role in the criminal justice system — with the great majority of policing, prosecuting, and incarcerating happening at the local and state level. For example, roughly 87 percent of US prisoners are in state facilities (and most of those state inmates are in for violent, not drug, offenses).

But Trump, Sessions, and their policies can set the national tone. So far, the tone they are really trying to set seems entirely focused on escalating the war on drugs. Here are three big ways they’ve tried to achieve that.

1) A crackdown on marijuana legalization

Eight states and Washington, DC, have legalized marijuana for recreational purposes since 2012, when Colorado and Washington state became the first two to do so. The eight include California, the most populous state in the country and the latest, since January 1, to allow legal pot sales.

But even as these states allow cannabis for recreational use, pot remains illegal under federal law.

The Obama administration, however, chose to enforce this law as leniently as possible in states where voters elected to legalize marijuana. Through a 2013 memo written by then–Deputy Attorney General James Cole (known as the Cole memo), it told the states that as long as they followed some rules (like not letting legal pot fall into kids’ hands or flow across state borders), the feds wouldn’t crack down.

This let states carry out their legalization schemes with little federal interference — although federal law does still make it so legal pot businesses can’t claim certain tax deductions and easily access banking.

The eight criteria states had to meet under the Cole memo to avoid federal interference into state-legal marijuana.
The eight criteria states had to meet under the Cole memo to avoid federal interference into state-legal marijuana.
Government Accountability Office

Some legalization advocates worried that Sessions, a vocal critic of legalization, would simply take a tougher interpretation of the memo — by, say, telling prosecutors to crack down on states that let any marijuana land in the hands of minors or across state lines (both of which are, to some extent, unavoidable no matter how strict a state is).

But Sessions has gone even further, ending the Cole memo and related guidances altogether. Since marijuana is illegal at the federal level, that will let federal prosecutors go after state-legal marijuana at their own discretion — a return to the pre-memo days.

Before the memos were in place, it wasn’t rare for federal law enforcement to use their discretion to pursue marijuana businesses that were doing nothing illegal at the state level — leading to high-profile raids during President George W. Bush’s administration and the early days of the Obama administration.

This is something Sessions has long clamored for. In 2016, he argued that the federal government should use its law enforcement capabilities to send a message that “good people don’t smoke marijuana.”

Trump said as a candidate that marijuana policy should be left to the states to decide, but ultimately the White House has fallen in line with Sessions — with press secretary Sarah Huckabee Sanders saying on Thursday that “whether it’s marijuana or whether it’s immigration, the president strongly believes that we should enforce federal law.”

Still, a lot of uncertainty remains. Justice Department officials couldn’t tell HuffPost whether Sessions’s move will actually lead to more anti-marijuana prosecutions. That even Justice Department officials don’t know the answers to such a basic question suggests there may be a lot of chaos around this decision. “And that might be what [the Justice Department] intended,” Ryan Reilly of HuffPost tweeted.

2) Stiffer penalties, even for low-level drug offenders

The Cole memo and related guidances weren’t the first that Sessions yanked in an attempt to escalate the war on drugs. In May, Sessions also rescinded another Obama-era memo that told federal prosecutors to avoid charges for low-level drug offenders that could trigger lengthy mandatory minimums.

Sessions’s new memo instructed prosecutors to go in the opposite direction — and charge even low-level offenders with the most severe penalties possible. It said that “prosecutors should charge and pursue the most serious, readily provable offense,” calling this concept “a core principle” of the Justice Department.

The Obama memo didn’t leave prosecutors totally powerless. It included exceptions, for example, for offenders who were part of a large-scale drug trafficking organization, gang, or cartel. But that apparently wasn’t enough for Sessions.

Prosecutors “deserve to be un-handcuffed and not micromanaged from Washington,” Sessions said at the time. “It means we are going to meet our responsibility to enforce the law with judgment and fairness.”

This is the kind of thing both Trump and Sessions have long advocated for. In 2016, Trump praised now–Vice President Mike Pence for increasing mandatory minimum sentences for drug crimes as governor of Indiana. And during his last year in the Senate, Sessions played a key role in killing a criminal justice reform bill that would have relaxed prison sentences for low-level drug offenders.

Again, how Sessions’s changes will shake out remains unknown. There have already been some reports of federal prosecutors pursuing harsh charges against low-level drug offenders in the past year. But whether this will lead to an increase in prosecutions overall depends on whether enough prosecutors heed the attorney general’s guidance to escalate their anti-drug efforts.

3) Emboldening the police

Trump and Sessions have also taken multiple steps to empower police to aggressively pursue the war on drugs.

Here are a few examples:

  • Under Sessions, the Justice Department has pulled back federal investigations of police departments. The Obama administration used these investigations to uncover police abuses in cities like Chicago, Baltimore, and Ferguson, Missouri, and encourage reforms in those places.

But Sessions criticized the investigations and reforms, arguing that they were “handcuffing” police officers. Without these investigations, federal oversight of police departments is greatly diminished.

  • Sessions also made it easier for police to carry out what’s called “civil asset forfeiture,” when police take someone’s property without charging them with a crime. The Obama administration had placed some mild restraints on the practice, but Sessions in July rescinded the memo.

The argument for the practice is that it lets police seize profits and property that’s used in criminal — particularly drug-related — activity. But investigations have repeatedly found that cops have abused civil asset forfeiture to take cash and property from innocent people.

  • Trump in August signed an executive order making it easier for police departments to obtain military-grade weapons from the federal government, including sniper rifles, camouflaged heavy armor, and armored vehicles. A previous order from Obama had placed restrictions on the gear after cops were accused of misusing it against Black Lives Matter protests in Ferguson, Missouri.

The gear’s availability had also enabled the proliferation of SWAT teams — which, according to a 2014 report by the American Civil Liberties Union, have been used to carry out heavily armed drug raids in predominantly black communities.

All of this goes toward one goal: expanding police power, enabling cops to carry out more aggressive anti-drug enforcement without fears of the risks. Much of what the Obama administration did in this area was focused on making sure cops weren’t breaking the law and violating people’s civil rights. But Trump and Sessions seem more concerned with whether the police are stopping lawbreaking from others, not whether cops are breaking the law themselves.

The Justice Department is following through on what Trump and Sessions called for in the past. Trump said on the campaign trail that police should be more aggressive than they are today, endorsing the controversial “stop and frisk” strategy that a court struck down in New York City because it was used to target minority Americans. And during a 2015 Senate hearing called “The War on Police,” Sessions criticized Obama-led police reforms because, in his view, they stifled police from doing their jobs.

This all adds up

Individually, each of Trump and Sessions’s policy changes may have amounted to a minor news story on the day they were announced. But together, the moves add up to a sharp shift from the softer approach to drugs that the Obama administration had taken.

And Trump and Sessions have done all of this without changing the law, since Congress itself has done little on criminal justice issues in recent years.

The Trump administration has managed to tap into a reality of the US criminal justice system: It is, at a baseline, far more punitive than others around the world — demonstrated by the US having an incarceration rate that’s higher than the rates of authoritarian regimes like China, Cuba, and Russia, and in fact higher than any other country except the small island nation of Seychelles.

Administrations like Obama’s were able to pull back this punitiveness by telling police and prosecutors to back off. But ultimately, the baseline — marijuana criminalization, the strict mandatory minimum laws, the aggressive culture in policing and prosecutions, the abundance of prisons — has given Trump and Sessions a way to undo much of Obama’s work without legislative action. That won’t change until Congress passes new laws that memos and executive orders can’t fully overcome.

So Trump and Sessions have been able to pursue an escalated version of the decades-old war on drugs.

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