Jeff Sessions has resigned as Attorney General, a move that opens up many questions about the future of investigations into the White House and harsh federal law enforcement.
While it is true that Sessions’s record should worry those who believe in limited government and individual liberty, Cato's Trevor Burrus and Alex Nowrasteh believe the actual reason for Session’s resignation is that he recused himself from involvement in special counsel Robert Mueller's Russia investigation.
“He’s not fired for [his] positions [on criminal justice and immigration]. He has been fired because he did the right thing, and that I think should worry libertarians, liberals, and conservatives who are following this issue,” said Alex Nowrasteh.
Legal Marijuana Under Attack
The DOJ is using the criminal law to trample on state prerogatives and individual rights…
Today, Attorney General Sessions announced that the Department of Justice rescinded the “Cole Memo,” an internal enforcement guideline from the Obama Administration that de-prioritized enforcement of federal marijuana prohibition against individuals and businesses complying with state laws regarding recreational marijuana. This move endangers state-legal businesses and violates the principles of federalism that have been central to the Republican Party for decades.
This was made possible, in part, by the failure of the judiciary to rein in the power of an overzealous federal government. The Supreme Court has twice approved of this type of overreach. In Wickard v. Filburn (1942) and Gonzales v. Raich(2005), the Court ruled that individuals growing crops exclusively for personal consumption—wheat and marijuana, respectively—could be regulated by the interstate commerce clause of the U.S. Constitution despite the crops never entering a market of any kind, let alone across state lines.
While the average marijuana consumer is not going to be targeted or arrested by the federal government, business owners directly and indirectly involved in state-legal recreational marijuana distribution may see their freedoms and livelihoods threatened by this action. Put simply, the DOJ is using the criminal law to trample on state prerogatives and individual rights.
The Attorney General has expanded the abuse of due process known as civil forfeiture. In this Cato Daily Podcast Clark Neily explains how the process harms low income and disenfranchised people
Jeff Sessions is Wrong on Civil Asset Forfeiture
Federal “adoption,” as it’s referred to, allows local police to seize property without criminal charge — which is forbidden or limited under some state laws — and turn it over to the federal government. Then, under what is known as the “equitable sharing” provision, up to 80% of the value of that seized property is returned directly to the local law enforcement agency for certain purposes such as paying for overtime or buying law enforcement equipment.
Unlike criminal forfeiture, civil forfeiture requires no arrest or criminal proceeding for the government to seize and liquidate property that the government claimed was connected to a crime. While there are administrative procedures that must run their course between the time the property is seized and when the government may liquidate the asset, the burden is usually on the property owner to prove that the asset is licit and not tied to a criminal act, turning due process completely upside down.
Although the attorney general paid lip service to protections for innocent property owners, the reinstitution of federal adoption incentivizes police to employ tactics that will likely ensnare presumptively innocent people and place burdens on them to prove their property is legal. Moreover, this may have a disparate impact on ethnic minorities by incentivizing racial profiling and skewing police priorities away from public safety.
Congress should act to rein in the DOJ’s forfeiture powers and respect state limits on civil forfeiture. Likewise, state governments should remove the financial incentive police departments have to shake down innocent drivers.
Loretta Lynch Confirmed as Attorney General
After one of the longest confirmation processes in the history of the Attorney General’s office, Loretta Lynch was confirmed by the Senate today as Eric Holder’s successor. From a criminal justice perspective, whether Lynch will embrace or abandon Holder’s position on state-level drug legalization and his announced commitment to reforming civil asset forfeiture are two questions that spring immediately to mind.
“America has a new Attorney General, but precisely what that means for federal criminal justice reform remains an open question,” says Cato policy analyst Adam Bates.
