Trump’s choice to become attorney general is very much a man of the ‘80s, when the war on drugs was new and cool.
For manifold reasons of background and ideology (and maybe some score-settling for the scuttling of his nomination 30 years ago as a federal judge), Jeff Sessions as attorney general is a nightmare come to life for people who care about the enforcement of civil rights and voting rights. As my colleague Eric Levitz explains, Sessions’s entrenched position in the very last ditch of support for the 1980s-style “war on drugs” will create some serious conflicts with states that are rapidly moving toward legalization of marijuana.
There’s one issue, however, where Sessions’s evident lack of sympathy for minority Americans and his passion for the war on drugs comes together in an especially destructive way: criminal-justice reform. As a result, a painfully constructed bipartisan and cross-ideological movement to “de-incarcerate” many people (disproportionately African-American and Latinos, of course) tossed into prisons as a result of the mandatory minimum sentences, which spread like wildfire in the 1980s and 1990s, could soon completely fall apart.
The “criminal-justice reform” effort is a rare and perhaps (in this polarized age, at least) unique example of thinkers and policy makers from very different perspectives coming together over a long period of time and gradually coming near legislative success. Among conservatives, a combination of self-conscious Christian activists promoting the possibility of rehabilitation, fiscal hawks concerned by the vast cost of American prisons, and quasi-libertarians who dislike incarcerating people for their private drug use, made criminal-justice reform not only acceptable but respectable on the right. When arch-conservative Senator Mike Lee, a Utah Republican, and traditional liberal Senator Dick Durbin, a Democrat from Illinois, came together to sponsor legislation reforming federal sentencing policies in 2013, it looked like a breakthrough could be possible. After another couple of years absorbed with bringing old-line conservative Judiciary Committee chairmen Republicans Chuck Grassley of Iowa and Bob Goodlatte of Virginia, pay dirt looked near. Figures as wildly diverse as the President of the United States and the Koch Brothers were on record arguing that criminal-justice reform was an urgent national priority.
Then, with the 2016 elections pending, the junior U.S. senator from Alabama began raining on the criminal-justice-reform parade, attacking pending Senate legislation on both traditional war-on-drugs grounds, and the new claim that America was being subsumed in a new “crime wave.” Jeff Sessions’s close friend Donald Trump was soon echoing the claim that violent crime was sweeping the nation (untrue, but also hard to refute in the wake of homicide spikes in many cities), while his Senate wing man Tom Cotton of Arkansas argued the real problem with the criminal-justice system was “under-incarceration.” Revisions to the main Senate bill on sentencing reform to ensure violent offenders did not benefit kept some jittery conservatives onboard — but not Sessions. Partly due to Sessions’s and Cotton’s demagoguing on the issue, Mitch McConnell shelved action on the bill for the year.
And now Jeff Sessions is going to become attorney general, unless his colleagues prevent his confirmation (very unlikely, though the confirmation hearings could be interesting).
You cannot blame the apparent failure of federal-sentencing reform entirely on the reactionary stylings of Sessions and Cotton. There was a simmering dispute just under the surface all along — of particular concern to House Judiciary chair Goodlatte — as to whether sentencing reform should encompass not just nonviolent drug offenders but white-collar defendants convicted without proof of criminal intent (of great interest to business magnates at risk of criminal prosecution for violating federal regulations). Maybe the dream of bipartisan legislation unraveling the mistakes of the 1980s was a fantasy after all.
But with Jeff Sessions — a man who in almost every respect is still living in the 1980s, if not some earlier decades of U.S. and Alabama history — at the top of the law-enforcement machinery of the federal government, criminal-justice reform in Washington (though perhaps not in the states) is probably dead for the foreseeable future. It is unclear if Trump understands appointing Sessions is going to be a real obstacle to his proclaimed goal of winning 95 percent of the African-American vote in 2020. But we all need to understand that Trump’s decision to make Sessions the beneficiary of one of his very first cabinet appointments should be the death knell for any naïve hopes the new administration would create mind-bending bipartisan coalitions. Trump is turning back the clock in a big hurry.