Courtesy Ryan J. Reilly /
United States / Criminal Justice

Whither the War on Drugs?

Note: This is the fifth and final piece in a series examining criminal justice in America. Read the earlier stories here, here, here and here.

In December, I wrote that the election of Donald Trump would likely put a hold on many of the criminal justice reforms that President Obama had advocated, many of which once seemed to have bipartisan support. In this series, I have focused on state-level criminal justice policies. After all, only about ten percent of inmates are held in federal prison—the vast majority are in state or local jails. Local practices that keep nonviolent individuals out of jail pretrial, state laws that allow for the release of prisoners who are deemed to pose no threat to society, and policies that encourage employment among ex-offenders are all measures that can help reduce mass incarceration, and they can all continue to happen at state or local level.

The first few months of the Trump administration have been sparse in terms of concrete criminal justice policy changes. In February, the president signed three executive orders that created a task force, prescribed steps for federal agencies to increase intelligence sharing among different areas of law enforcement, and advised for the use of existing laws in cases involving crimes committed against law enforcement officers. But public statements by members of the administration, most notably Attorney General Jeff Sessions, have provided some insight into the goals of federal criminal justice policy in the next three and a half years.

In a speech before federal, state, and local law enforcement officials in March, Sessions affirmed the importance of cooperation between local and federal governments:

To turn back rising crime, we must rely heavily on all of you in state and local law enforcement to lead the way—and you must know that you have our steadfast support. The federal government should use its money, research, and expertise to help you figure out what is happening and determine the best ways to fight crime. We should strengthen partnerships between federal and state and local officers.

But despite this call for stronger partnerships, some of the measures that Trump and Sessions have called for go against popular and successful state and local policies concerning law enforcement and incarceration.

For example, several states have moved away from mandatory minimum sentencing in the last decade. From a public policy perspective, long mandatory sentences make little sense: aging inmates carry serious financial costs, and there is scant evidence that keeping nonviolent offenders locked up brings about public safety benefits.

In 2009, Rhode Island stopped using mandatory minimums in sentencing nonviolent drug offenders and saw a nearly ten percent decline of its prison population in two years, as well as a decline in violent crime. And in 2012, California repealed its automatic “three strikes” sentencing law, which granted an automatic life sentence to any person convicted of a third felony.

By contrast, Sessions has been a staunch supporter of increasing the use of mandatory minimums, arguing that they serve as a deterrent to low-level criminals. Last year, Sessions (at the time a senator from Alabama) voted against the Sentencing Reform and Corrections Act, which would have reduced the mandatory minimum sentence for some drug offenders from life in prison to twenty-five years.

Drugs, specifically marijuana, are one area where there is a sharp disparity between state and federal law enforcement policies. In 2016, four states voted to legalize marijuana, bringing the total number of states that have legalized marijuana to eight. An additional twenty-one states allow marijuana for medicinal purposes. A recent poll found that sixty-one percent of Americans support its legalization.

In terms of jurisdiction, drug laws are unique because most drug violations are both state and federal crimes. Although marijuana is legal for recreational use in eight states, its possession or sale remains a federal crime.

Theoretically, Sessions has the power to prosecute every marijuana user in Colorado, Washington, Oregon, California, Alaska, Maine, Massachusetts, and Nevada, as well as any medical user in states where the drug is legal for medicinal use. Marijuana is still classified as a Schedule 1 drug—the federal government considers it as bad as LSD or heroin and worse than cocaine.

Few expect that Sessions will prosecute low-level marijuana users, and the attorney general has said he is waiting on the recommendations of a task force that will complete its work in July. It seems more likely that Sessions will push for harsher mandatory minimum sentencing for drug offenders and advocate harsher local law enforcement strategies.

While Sessions can encourage federal prosecutors to pursue harsher sentences—something he has already begun to do—he cannot force states to act the same way. And state governments, conscious of their own budgets and the high cost of mass incarceration, may not be so inclined to follow the attorney general’s lead.

Sessions’ other tool in resuming the war on drugs is his faith in local law enforcement. Many drug arrests, even those that will be prosecuted federally, are made by local police officers. Thus, Sessions is right in stating that the federal government will “rely heavily” on state and local agencies to carry out its plans.

It remains unclear how this cooperation will play out. Sessions did himself no favors when he criticized New York City as “soft on crime,” a remark he later walked back. (Crime in New York City has been steadily declining for over two decades.)

A few months in to Trump’s presidency, the Trump and Sessions approach to criminal justice has been one more of talk than of action. Concrete policy changes remain to be seen, but if the administration is serious about resuming the war on drugs and assuring a commitment to law and order, they will find themselves fighting the best criminal justice research and some successful state and local policies.