Jeff Sessions

Sessions Boosts Forfeiture and Mandatory Minimums but Lets Pot Prohibition Collapse

Could the contrast have something to do with his boss's policy preferences?



If you were familiar with Attorney General Jeff Sessions' history as an unreconstructed drug warrior, you probably were not surprised that he quickly moved to reverse the modest restraints that Eric Holder imposed on the use of mandatory minimum sentences and civil asset forfeiture. By contrast, while Sessions has been openly displeased by the ongoing collapse of marijuana prohibition, he has so far done nothing to stop it, even though he could easily cause a lot of trouble for the newly legal cannabis industry. As implausible as it might seem, the difference may actually have something to do with his boss's policy preferences.

Donald Trump is not known for detailed or carefully considered policy positions. But the memo that Sessions sent to federal prosecutors on May 10, which urges them to bring the most serious provable charge except in extraordinary cases, is consistent with Trump's tough-on-crime campaign rhetoric. "Decades of progress made in bringing down crime are now being reversed by this administration's rollback of criminal enforcement," Trump complained in his speech at the Republican National Convention last July. "Homicides last year increased by 17 percent in America's 50 largest cities. That's the largest increase in 25 years."

Sessions attributes the 2015 increase in violent crime to the charging policy he reversed, which was aimed at helping low-level, nonviolent drug offenders avoid mandatory minimums. That claim is logically impossible, since Holder's policy was not established until August 2013 and could not have had as big and as fast an impact as Sessions suggests. But the important point is that Trump and Sessions see eye to eye when it comes to blaming the uptick in violent crime on the Obama administration's prosecutorial laxity.

Trump and Sessions likewise agree that Holder's elimination of federal "adoption" as a way for local law enforcement agencies to avoid state restrictions on forfeiture imposed a baffling and indefensible limit on the use of a crucial law enforcement tool. During a meeting with county sheriffs in February, Trump made two things abundantly clear: He does not really understand what civil forfeiture is, and he wants to see more of it. "There's no reason for that," the president said, referring to restrictions on forfeiture. "So asset forfeiture, we're going to go back on, OK? I mean, how simple can anything be?"

Like most things, civil forfeiture, which allows police to take property allegedly linked to crime without charging the owner, is not quite as simple as Trump thinks. But he could not have given Sessions a greener light for undoing Holder's reform (which in any case did not affect most of the forfeiture revenue flowing to state and local agencies through the Justice Department's Equitable Sharing Program). "President Trump has directed this Department of Justice to reduce crime in this country, and we will use every lawful tool that we have to do that," Sessions said on Wednesday. "We will continue to encourage civil asset forfeiture whenever appropriate in order to hit organized crime in the wallet."

The signal for interfering with state legalization of marijuana, by contrast, has been yellow at best. While running for president, Trump repeatedly said he thought medical use of marijuana should be allowed and, while he had his doubts about broader legalization, believed the decision should be left to the states. It would be politically awkward to reverse that position, especially now that 29 states allow medical use and one in five Americans lives in a state where recreational use is legal. So far Trump has not tried to renounce marijuana federalism. The closest he came was when White House Press Secretary Sean Spicer drew a distinction last February between medical and recreational marijuana, predicting that the Justice Department under Sessions would "continue to enforce the laws on the books with respect to recreational marijuana."

That distinction is hard to draw in practice, since the same state-licensed businesses that produce and sell marijuana for recreational consumers often serve patients as well. In any case, Sessions has not made any moves against such businesses since taking office in February, although it would be cheap and easy to spook them with letters threatening prosecution or forfeiture. Nor has he tried to challenge state marijuana laws in federal court, an untested option the Obama administration chose not to pursue. Instead Sessions has charged a subcommittee of his crime task force with making recommendations about federal marijuana enforcement.

Sessions also has asked Congress to free the Justice Department from the spending rider that stops it from impeding the implementation of medical marijuana laws. But so did the Obama administration, so we probably should not read too much into that position. It surely does not amount to the "war on legal marijuana" that the Los Angeles Times claims the Trump administration is waging.

Unlike Sessions' shifts on charging and forfeiture, a cannabis crackdown would contradict Trump's campaign promises, cause an uproar among state officials across the country, and provoke strong objections from members of Congress who represent states with legal pot. While it might appeal to some social conservatives, any attempt to override state marijuana policies would fly in the face of public opinion and invite criticism from the right as well as the left. That's a mess of trouble Trump does not need and any sensible attorney general, especially one who is already on thin ice with the president, would hesitate to stir up.