The Corner

Law & the Courts

Sessions: Digging a Deeper Hole


Attorney General Jeff Sessions ordered federal prosecutors this week to seek the maximum punishment for drug offenses, in one of the clearest breaks yet from the policies of the Justice Department under the Obama administration.

A break from the policies of the previous administration? Yes, to a degree. And on this occasion that’s not a good thing.

The Washington Post quotes Sessions:

“This policy fully utilizes the tools Congress has given us,” the attorney general’s memo says. “By definition, the most serious offenses are those that carry the most substantial guidelines sentence, including mandatory minimum sentences.”


By definition.

I’m more than a little skeptical about mandatory minimums at the best of times (the thinking behind them is, all too often, the legislative equivalent of the ‘zero tolerance’ policies set up by officious school boards, and, like those policies, they are a recipe for abuse and injustice).

They are also an invitation to prosecutorial overreach, but Sessions may not see that as too bad a thing. After all, he’s someone who is an enthusiastic supporter of civil asset forfeiture.

Back in January, in an article for Forbes, George Leef explained:

Donald Trump’s choice for Attorney General, Senator Jeff Sessions of Alabama, is among that small minority of Americans who reflexively support civil asset forfeiture because it supposedly helps fight crime. At least, those were his thoughts during a Judiciary Committee hearing on civil asset forfeiture in May 2015…

Sessions, who declared that he was “very unhappy” with criticism of civil asset forfeiture. He went on to say that he thought “taking and seizing and forfeiting, through a government judicial process, illegal gains from criminal enterprises is not wrong.” Furthermore, he declared, “95 percent” of forfeiture cases involve criminals who’ve “done nothing in their lives but sell dope.”

Senator Sessions’ comments are recounted in this Roll Call article by Institute for Justice attorney Robert Johnson, who offers this devastating rejoinder: “Before government labels someone a ‘criminal,’ it has to secure a criminal conviction. The fact of the matter is, we have no way to know what portion of civil forfeitures involve genuine ‘criminals,’ as the whole point of civil forfeiture is that government can take property without convicting or even charging anyone with a crime.”

…Civil asset forfeiture doesn’t just harm innocent people. It also creates incentives that distort the efforts of police departments away from preventing and solving the worst crimes and toward finding the most lucrative pieces of property to seize. During the same hearing, Senator Sessions said there’s “nothing wrong with having the money be given to the officers who helped develop the case.”

If Sessions cannot see what is wrong with that, he is (on the most benign analysis) either dimwitted or naïve (I don’t think he’s either). On any analysis he reveals himself as someone who puts the state before the citizen.

As for his decision to double down on the war on drugs, well, for some reason General Westmoreland comes to mind.

Reasonable people can disagree whether drug prohibition is something on which the government ought to be allowed to insist. I don’t think that it should, but there’s no need to go over that ground yet again just now. Regardless of the philosophical debate there are also the practicalities of the drug war to consider. The war on drugs has not only failed, it has also created quite remarkable amounts of collateral damage. It has trashed civil liberties. It has boosted the power of the state far further than it should ever have been allowed to go. It has squandered the resources of the criminal justice system. It has helped terrorists. It has enriched criminals. It has ruined lives. It has cost billions. It has worked against American foreign policy. It has benefited the ‘prison-industrial complex’. And, yes, it has also created a demand for drugs far more dangerous than those, in a legal market, that people would want to try.

To announce, in effect, a surge in that same drug war is an insult to justice, an insult to commonsense and an insult to taxpayers.

It will also, I suspect, represent an assertion of federal power over that of the states.

Sessions is a conservative, I am told.