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Jeff Sessions wants to restart the war on drugs. How far can he go?

Big changes in D.C. could affect the criminal justice landscape in Minnesota in unexpected ways.

In his short tenure as Attorney General, Sessions has already taken steps to influence federal policy in a number of areas related to drugs and criminal justice, from toughening sentencing rules for nonviolent offenders to cracking down on medical marijuana.
REUTERS/Aaron Bernstein

A few things defined the war on drugs, the federal government’s decades-long effort to reduce drug use and related crime: prosecuting drug offenders to the fullest extent of the law, cracking down on states that had enacted more permissive policies, empowering law enforcement to go after suspected criminals, instilling in American youth a zero-tolerance outlook on drug use.

These ideas dominated the federal approach to drug enforcement policy and criminal justice from the 1980s well into the 2000s, until Barack Obama’s administration — prompted by evidence these tough-on-crime policies did not work — took steps to roll them back, while Republicans and Democrats alike cheered.

With the election of Donald Trump, these pillars of the war on drugs are back in vogue. The president made clear his stance on drug policy by selecting Jeff Sessions, a former U.S. senator from Alabama and a prosecutor at the height of the crack epidemic, to head the Department of Justice.

Sessions, now the country’s top law enforcement official, is a drug crime hard-liner, who once proclaimed that marijuana users are bad people, and openly pines for the ’80s and ’90s heyday of the drug war.

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In his short tenure as Attorney General, Sessions has already taken steps to influence federal policy in a number of areas related to drugs and criminal justice, from toughening sentencing rules for nonviolent offenders to cracking down on medical marijuana.

As a federal official, Sessions can only influence state and local policy so much. But some Minnesotans are wary that big changes in Washington may affect what they see as progress on criminal justice issues.

A busy six months for Sessions

After Sessions was narrowly confirmed in the U.S. Senate, much of the public’s scrutiny of the new AG centered around his ties with Russian government officials during Trump’s run for president, in which the then-senator served as a key backer and adviser.

As Sessions recused himself from the Russia investigation and testified before Congress on the subject, he moved quickly to establish himself in another realm: advancing a strident vision of federal criminal justice and drug policy.

In May, Sessions took aim at an Obama-era policy that eased sentencing guidelines for people convicted of nonviolent drug offenses. While in office, former Attorney General Eric Holder instructed federal prosecutors to avoid charging people with crimes that would trigger so-called mandatory minimum sentences, in which the defendant is subject to a fixed amount of time in prison.

Per the federal criminal code, for example, a person with a prior drug felony on their record who is charged with possession of 50 grams of methamphetamine would face a minimum sentence of 20 years in prison.

A wealth of research has indicated that mandatory minimums have been ineffective in tackling crime rates, and that their use has significantly contributed to the massive increase in the U.S. prison population.

In a letter to the roughly 5,000 federal attorneys that work for him, Sessions directed them to seek the harshest punishments possible in court. “Prosecutors should pursue the most serious, readily provable offense,” Sessions wrote.

The last attorney general to take such a move was John Ashcroft, who served under George W. Bush. Under his watch, the federal prison population swelled by over 50,000.

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Since taking office, Sessions has also advanced his harsh views on drugs, claiming in a speech in March that using them will “destroy your life.” He has followed up on that rhetoric by pushing for repeal of a key protection granted by Congress to states where marijuana is legal for medicinal or recreational purposes.

In June, Sessions sent a letter to lawmakers asking them to drop the so-called Rohrabacher-Farr amendment, which allows medical marijuana providers to operate in states where it is legal without fear of retaliation from the feds, who still classify marijuana as a high-level narcotic. The legislation, passed in 2014 with bipartisan support, does this by barring federal government funding from going toward the prosecution of marijuana providers.

Sessions wrote that it would be “unwise” for Congress to “restrict the discretion of the Department to fund particular prosecutions, particularly in the midst of an historic drug epidemic and potentially long-term uptick in violent crime.” (He did not address the fact that the current drug epidemic primarily involves opioids, and that medical marijuana has been identified as a way to help mitigate the crisis.)

Beyond that, in a speech to prosecutors in Minneapolis this week, Sessions called for the Department of Justice to increase civil forfeitures, or police seizures of money and property from those suspected of crimes, particularly drug crimes. Frequently abused around the country, asset forfeitures were another drug war tactic the Obama administration rolled back. The Department of Justice will reportedly restore police authority to seize suspects’ property, but with some new safeguards intended to prevent abuse.

Finally, Sessions has called for a return of the quasi-defunct D.A.R.E. Program, the anti-drug education program for U.S. schoolkids that embodied the zero-tolerance culture of the drug war. Sessions said in a July speech that D.A.R.E. is needed; research, including from the federal government, found the program to have produced no meaningful outcomes.

An uncertain state-level landscape

At this stage, it’s unclear the extent of the impact Sessions’ policy changes will have on Minnesota.

In recent years, Minnesota has taken significant steps to relax its sentencing guidelines for drug offenders. They were once among the harshest in the country: through the 1990s and 2000s, possessing 10 grams of a hard drug like cocaine would automatically subject a defendant to a 86-month minimum sentence. Experts say this effectively put drug kingpins and small-time dealers and users in the same category.

Last year, the Minnesota legislature passed legislation to implement new sentencing rules, reducing the recommended sentences for possession and sale of certain hard drugs, and raising the threshold of possession that triggers the most serious criminal charges.

Before those changes, according to Kelly Mitchell, executive director at the Robina Institute of Criminal Law at the University of Minnesota, federal authorities would occasionally push to state-level prosecutors some drug cases because Minnesota’s sentencing rules were stricter than the feds’.

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With Sessions’ new directive, it’s possible a new disparity may open up between state and federal rules — but in the other direction. Much depends, though, on who will take the place of Andy Luger, the former U.S. attorney for Minnesota who Trump fired.

As the state’s lead federal prosecutor, Luger made homegrown terrorism a priority, and had latitude to direct significant resources and personnel toward that issue. Observers from the state legal world say that drug crimes were not a marquee priority in that office.

According to Brock Hunter, the former president of the Minnesota Association of Criminal Defense Lawyers, Luger’s replacement will have some room to decide how much to hew to Sessions’ drug enforcement priorities — or whether to do so at all.

Trump fired all the U.S. attorneys who did not resign after his election, leaving him with 93 positions to fill. So far, he has only sent to the Senate nominations for a handful of those spots, even as he blames Democrats in the chamber for obstruction.

“There’s been an ebb and flow over the last seven years as to what U.S. attorneys decide to do,” Hunter said. “With the new appointment of a new U.S. attorney here in Minnesota, everyone’s going to be waiting to see what that means on the ground.”

Minnesota is also one of 29 states where medical marijuana is legal, so pot providers in the state — though they are few in number, thanks to the conservative nature of the state’s medical marijuana law — could be affected by a repeal of the Rohrabacher-Farr amendment. Ultimately, however, Congress will decide how to proceed on that statute, and there is significant bipartisan support for it.

With plenty of specifics still to be determined, legal experts and policymakers affirmed that big changes in D.C. could affect the criminal justice landscape in Minnesota in unexpected ways.

Mitchell, who formerly ran the Minnesota Sentencing Guidelines Commission, says federal changes do have impact on the state level, even if their court systems are generally separate. “When I worked at the Commission, we were aware of the smart sentencing movement at the federal level,” she said,. “It certainly influenced [our] thinking about what might be the appropriate way to sentence a drug offender, it’s the kind of thing that might make anyone think twice.”

Hunter said that he doesn’t believe that some county attorneys, like those in liberal Hennepin or Ramsey counties, would significantly change what they were doing based on what the presidential administration was doing. But, he added, “It’s unprecedented territory we’re in.”

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Criminal justice reform picking up steam in D.C.

Sessions’ agenda is also facing resistance from Republican and Democratic lawmakers in Congress, which has become increasingly interested in significant reforms to the criminal justice system.

It’s a big departure from the 1990s and 2000s, when “tough on crime” ideas were broadly popular across the ideological spectrum. Lately, bipartisan bills to reform aspects of the criminal justice system have drawn in dozens of sponsors in both chambers: in 2015, senators introduced a landmark bill that came close to gathering enough momentum in the last session of Congress. That legislation proposed cutting mandatory minimum sentences for nonviolent drug crimes, and funds programs designed to reduce recidivism rates.

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Republicans and Democrats have been swayed by evidence that once-popular drug policies did little to reduce crime rates and recidivism rates, cost far too much for taxpayers, unfairly targeted minorities and the poor, and caused significant, lasting damage to communities and families.

Fifth District Rep. Keith Ellison and 2nd District Rep. Jason Lewis, though they are on the opposite ends of the ideological spectrum within the Minnesota congressional delegation, have both been vocal voices in favor of criminal justice reform. The two lawmakers, along with 6th District Rep. Tom Emmer, have co-sponsored legislation protecting individuals from asset forfeiture, for example.

“It took us 26 years to come to the conclusion that the war on drugs was bad for the U.S., and that it didn’t stop drug usage, and it ruined a lot of lives,” Ellison told MinnPost. “The abuses of the war on drugs seem to be lost on Jeff Sessions.”

“The bipartisan consensus about a better, more effective way to deal with drugs had arrived,” he said. “So it’s not all Republicans, it’s some. But the ones who want to take us back to the bad old days are in power.”

Lewis told MinnPost he has serious concerns with the direction the administration has taken on medical marijuana, sentencing, and asset forfeiture. Calling himself a “10th Amendment guy” — referencing the constitutional amendment that reserves for the states powers not specified for the federal government — Lewis argued the federal criminal code is too big, and that states should be left to make their decisions on these issues.

“We’ve got over two million people incarcerated,” Lewis said. “In federal prison, over half of those are for drug offenses, many of those nonviolent. I don’t think that would occur on the same level if it were relegated to the states.”

Where the two differ is how important Sessions, who has made opposition to drugs a pillar of his career, is in all of this.

Ellison, who described Sessions as a racist, called his rise a “nightmare scenario. He’s horrible on every issue… He believes in using the criminal justice system as an instrument of racial and economic control of poor people and brown people.”

Lewis, on the other hand, did not have much to say about Sessions, and said that overreach from the federal Department of Justice has occurred through several presidencies.

This one, he said, is no different. “If I think they’re overreaching the way the Clinton Drug Enforcement Agency did, I’m going to say so, and I’m going to oppose it.”

Correction: Due to a transcription error, a previous version of this article incorrectly quoted Rep. Jason Lewis, misrepresenting his remarks.