On Nov. 8, California, Nevada, Massachusetts, and Maine legalized recreational marijuana use, bringing the total number of states that have legalized medical or recreational marijuana use to 28. This kind of development under the Obama administration has become both normal and legally uncomplicated. The Cole Memo, written by and named after Deputy Attorney General James Cole, dictated that the Justice Department back off aggressive enforcement of drug laws, part of an overall administrative and departmental effort to reform the criminal justice system. Memos of a similar sentiment—such as one that allowed and encouraged banks to do business with legal marijuana companies and producers—have made clear the Obama administration’s desire not to utilize federal legislation and law enforcement to override local law enforcement efforts in states that have legalized marijuana.
One of the many questions and concerns about President-elect Trump’s administration is the attitude it will take on both the marijuana question and, more importantly, the question of criminal justice reform. The president-elect indicated during his campaign that the issue of marijuana legalization should be left up to the states; however, his pick for attorney general, Sen. Jeff Sessions, has a long history of opposing legalization. In a Senate hearing earlier this year he said, “Good people don’t smoke marijuana.”
Despite this apparent disparity of opinion between the president-elect and his presumptive attorney general, many experts believe the former’s campaign promises, paired with widespread public support for legalization in states that have already done so, pose too high a barrier for even the most aggressively anti-marijuana Trump administration imaginable to overcome.
More ominous are the president-elect’s and presumptive attorney general’s histories with law enforcement practices and stances on criminal justice reform. Most visibly, perhaps, was Trump’s tough-on-crime rhetoric during his campaign. If implemented, such a mentality would depart sharply from the Obama administration’s Smart on Crime approach, which sought to, among other goals, reduce mandatory minimum sentencing and the length of sentences for low-level, nonviolent offenders.
Throughout his nearly eight years in office, President Obama has commuted or pardoned the sentences of 1,023 people, more than the combined total of the 11 previous administrations. Again, this policy is and has been part of a larger effort to reduce sentences and empty federal prisons. Less known, though, is the process of commutation, which requires the Justice Department to make recommendations for “good” clemency candidates. For Attorneys General Eric Holder and Loretta Lynch, such recommendations followed the Smart on Crime mandate.
Finally, it appears that prosecutors have fallen in line with the “Smart on Crime” directive: federal drug prosecutions dropped last year. While presidents and attorneys general cannot directly change or mandate local and state drug policy or enforcement, they certainly set an important tone. For Obama, and for Holder and Lynch, that tone was one of reform through the reduction of sentencing.
If he is confirmed, an Attorney General Sessions-led Justice Department would change everything. Setting aside looming questions of his past—that frame him as a man of despicably racist past views, at best, or, more likely, as a man of despicably racist views—Sessions has consistently opposed even the most modest, bipartisan-backed criminal reform.
In this regard, he is unlike the vast majority of his conservative peers, who’ve expressed interest in and voted for mild criminal reform (though it was more out of a sense of fiscal, not moral, responsibility). Sessions opposed legislation earlier this year to reduce prison time for some drug offenders, citing the need to protect cities and communities from the release of allegedly “violent” and “dangerous” felons.
This kind of alarmist rhetoric not only mirrors that of the president-elect’s tough-on-crime and law-and-order messages, but also those of President Richard Nixon, President Ronald Reagan, and President Bill Clinton. Undoubtedly, the pattern of reduced sentences and commutations from the Obama administration will end. But perhaps the cause of more concern is the change in rhetoric the Trump administration and the Sessions-led Justice Department will bring.
As many scholars have noted, Nixon-, Reagan-, and Clinton-era rhetoric and policies were not only ineffective in reducing crime, but also constituted an oppression and economic plunder of African-American communities as well as other communities of color to a scale rivaled only by slavery. To think that this country’s leaders will return to such rhetoric should horrify and shock us. And that such rhetoric will be institutionalized and normalized on the foundation of racially discriminative support for the president-elect is unthinkably regressive, not to mention dangerous. In the coming weeks, months, and years, we must consistently and fervently oppose such a narrative, lest its basis in racial oppression and economic falsities prevail.
Isaiah is a sophomore in the SFS.
