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Today, Attorney General Sessions announced that the Department of Justice rescinded the “Cole Memo,” an internal enforcement guideline from the Obama Administration that de-prioritized enforcement of federal marijuana prohibition against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.
Jeff Sessions’s Reefer Madness
Sessions’s reefer madness was once our own. Thankfully, with 61 percent of Americans supporting legalized recreational marijuana and 80 percent supporting medical marijuana, it is increasingly just his.
Attorney General Jeff Sessions has reefer madness. It was revealed this week that Sessions personally asked Congress for the authority to prosecute medical marijuana providers in the 25 states and three additional jurisdictions (D.C., Guam, and Puerto Rico) where some form of medical marijuana is legal. Sessions wanted Congress to repeal the broadly supported Rohrabacher-Farr Amendment, which prohibits the Justice Department from using federal funds to go after medical marijuana providers and users in those states where it has been made legal.
Oddly enough, this week is also the 80th anniversary of the House floor vote on the first major piece of federal marijuana legislation, the Marihuana [sic] Tax Act of 1937. That was when the whole country officially caught reefer madness. In the following decades, a series of misguided government policies made the problem worse, and prejudice toward marijuana and myths about the drug still abound.
Only in the last 20 years has the country begun to get over our self-inflicted disease. Unfortunately, there are those in whom the condition is lingering.
In a letter, Sessions asked Congress to remove the restriction due to the “historic drug epidemic and potentially long-term uptick in violent crime,” showing that the attorney general has clearly imbibed our coarsest and most antiquated form of anti-marijuana propaganda: its supposed connection to crime and its status as a “gateway drug.” Such rhetoric goes back to the years before the Marihuana Tax Act, a piece of legislation that emerged out of a haze of smoky propaganda from the Hearst newspaper company and the unrelenting zealotry of the Federal Bureau of Narcotics.
The bill came to the House floor late in the afternoon on Thursday, June 10, 1937. The vote was rushed, and at least one congressman wondered if it was “a matter we should bring up at this late hour of the afternoon. I do not know anything about the bill.” Another congressman reassured him that “it has something to do with something that is called marihuana. I believe it is a narcotic of some kind.”
At one point a group of congressmen asked that the bill’s proponents explain the provisions in further detail. In response, a member of Ways and Means recounted the hyperbolic testimony of Harry Anslinger, the Commissioner of the Federal Bureau of Narcotics and a man who zealously hated drug users. In committee, Anslinger had presented photographs of bloody murder scenes in order to show “the fury of the murderer” who is high on marijuana. He recounted the “case of a 20-year-old boy who killed his brothers, a sister, and his parents while under the influence of marijuana,” and he testified that in “some cases” a single marijuana cigarette “might develop a homicidal mania.” In all, the congressional record of floor debates over the law takes up fewer than two pages.
Only in the last 20 years has the country begun to get over our self-inflicted disease. Unfortunately, there are those in whom the condition is lingering.
That’s how federal marijuana prohibition came to America.
At the time of prohibition, scientists knew very little about how cannabis operated on the human body and whether there were any legitimate medical uses. Six months after the Act was passed, Dr. Herbert Wollner, a chemist at the Treasury Department (the act, as a tax, was enforced by treasury) wrote in a memo to Anslinger: “virtually nothing is known concerning the nature of the narcotic principle, its physiological behavior, and the ultimate effect upon the social group.” Wollner later complained that “ninety percent of the stuff that has been written on the chemical end of Cannabis is absolutely wrong, and, of the other ten percent, at least two-thirds of it is of no consequence.”
But the Marihuana Tax Act put the mark of Cain on the drug, and scientific interest in studying cannabis, as well as the funding, became rare. Anslinger was highly antagonistic to any attempt to study the drug scientifically; he preferred the debate to be controlled by fear and ignorance. The Public Health Service sponsored no research in the ensuing decade. Ultimately, in the words of one historian, “the law enforcement agency [the Federal Bureau of Narcotics] became the public’s arbiter of scientific arguments and debates, functioning as a filter through which scientific research had to pass on its way to the public.”
Over the next two decades, Anslinger’s Federal Bureau of Narcotics would help foster our reefer madness world-and Jeff Sessions’s reefer madness mentality-by essentially controlling the national narrative on marijuana. Anslinger asked his local supervisors to collect any newspaper stories or reports that could link marijuana to crime, and he directed all agents to look for any connection between insanity and marijuana use. Despite some researchers poking holes in Anslinger’s favorite theories-particularly that marijuana causes crime, insanity, and addiction-Anslinger was steadfast in his beliefs.
Anslinger left the Federal Bureau of Narcotics in 1962, but the situation hardly improved. In the 60s, one researcher in charge of the National Institute of Mental Health’s (NIMH) marijuana research complained that no “employees wanted to offend any of the Bureau of Narcotics police,” and that they “had to worry about antediluvian congressional types that had it in their power to smite us mightily where it hurt-right in our appropriation.” In the 70s, after the modern Controlled Substances Act was passed and a commission was created to study marijuana in-depth, President Nixon was as steadfast as Anslinger: “Even if the Commission does recommend that it be legalized, I will not follow that recommendation.” That commission, known as the Shafer Commission, recommended decriminalization and dispelled many myths about marijuana, concluding that “from what is known now about the effects of marijuana, its use at the present level does not constitute a major threat to public health.” President Nixon, of course, ignored the recommendations.
This is our reefer madness world, fostered by fear, ignorance, rushed lawmaking, anti-drug zealots, and a consistent discouragement of hard facts and good science. And it is the world still inhabited by Jeff Sessions, who cannot even bring himself to accept the growing consensus that marijuana has many legitimate medical applications.
Jeff Sessions’ Worrying Authoritarianism
The first of President-elect Trump’s nominees to get a confirmation hearing was Senator Jeff Sessions, who went before the Senate Judiciary Committee on Tuesday and Wednesday.
When President-elect Trump selected Alabama senator Jeff Sessions to be his attorney general, many conservatives cheered, Trump’s AG nominee has a record that ought to worry believers in small government and individual liberty.
Sessions sharply departs from the growing bipartisan consensus on criminal-justice reform. He was a leading opponent of the Sentencing Reform and Corrections Act, which reduced federal sentences for some non-violent drug offenses and other crimes, and has long been one of the most ardent drug warriors in Congress.
At a time when 32 states have legalized medical and/or recreational use of marijuana, Sessions told a Senate hearing last April that, “Marijuana is not the kind of thing that ought to be legalized…It’s in fact a very real danger.” His opposition to state legalization measures promises to put the Justice Department in conflict with conservative principles of federalism.
Moreover, Sessions has defended asset-forfeiture laws — which are considered by most observers to be widely abused — as a means of taking money from people who have “done nothing in their lives but sell dope.” He’s even advocated allowing the federal government to step in and seize assets when state law-enforcement agencies won’t.
Just as worrying, Sessions generally opposes Justice Department supervision of local police departments accused of racial abuses. He has opposed legislation protecting the jobs of federal whistle-blowers and shield laws protecting journalists from having to disclose their sources. He has defended the ability of the NSA and other federal agencies to spy on Americans, and even introduced an amendment to the Email Privacy Act that would have created a loophole allowing law enforcement to demand such data without a warrant.
Sessions will almost certainly be confirmed. Presidents are generally entitled to the cabinet of their choosing, and nothing that has come out about Trump’s AG nominee so far appears disqualifying. But that doesn’t mean that Senators shouldn’t ask him tough questions.
