In the Place of Justice
The views expressed are the author's own and not necessarily those of the Brennan Center for Justice.
Whatever else he is or does, Jeff Sessions, our nation’s next attorney general, personifies the gulf that exists in America today. He is the embodiment of the white backlash to eight years of a black president, the prosecutor who sees a nationwide crime wave that does not exist, the nationalist beloved by white supremacists who rails against immigrants whether they are here legally or not, the ideologue who loves the Second Amendment but typically eschews the First, Fourth, Fifth, Sixth and Eighth, the powerful politician who has done all in his power to ensure that certain citizens cannot faithfully exercise their right to vote.
On the great law-related issues that divide the country the Justice Department that Sessions’ will lead for the next four years or so will be unrecognizable from the one led by Eric Holder and Loretta Lynch these past eight years. And that’s precisely how many Trump voters wanted it to be. Sessions is their man because he is going to prosecute allegations of voter fraud rather than allegations of voter suppression. It doesn’t matter that the problem of in-person voter fraud is largely a myth and that the problem of voter suppression is bad and getting worse. Attorney General Sessions is going to make sure that the votes of white men and women are protected at the expense of the votes of citizens of color.
Likewise, for those voters in rural counties who overwhelmingly chose Donald Trump over Hillary Clinton, Sessions is their man because he will be an unapologetic supporter of the police and an unrepentant enemy of the Black Lives Matter movement. These voters haven’t had to endure years of “stop-and-frisk” policing, they haven’t seen their friends and family members shot by the police or their communities ravaged by predatory fines that pay for justice systems. In their world, of wide open spaces and less racial diversity, the police are friendly and courteous and certainly not worthy of the scorn and disrespect they see on the faces of protesters in cities rife with police misconduct.
So these Americans, the ones applauding Sessions today, won’t be upset when the Trump administration eases back federal oversight of rogue police departments in large cities. If that means more unarmed men, women and children are killed or injured by the excessive use of force, or that more mentally ill suspects are shot instead of treated, it will be a tragedy but not one that impacts their lives in any profound way. The problems of policing in inner cities are not their problems. They know that Sessions will be looking after their interests (expect when it comes to rampant civil forfeiture, by the way, which Sessions endorses and which many conservatives now deplore).
The men and women who endorsed Trump for president also likely see Sessions as their man to stem the political and legal momentum toward the legalization of marijuana. Maybe, like him, they’ve never met someone who smokes pot who they think is worth a damn. Maybe they don’t believe in the science that proves that marijuana has medicinal value. Maybe they see the rise of the pot movement as a cultural signpost. Maybe, like him, they equate marijuana use with opioid use, as though it were all one big problem. Does Sessions represent the end of the “smart on crime” approach to drug policy and the return of the “tough on crime” approach? And we in for a new round of soaring federal incarceration rates?
People who voted for Trump also surely see Sessions as their man on immigration, a federal official who not only opposes current policy toward illegal immigration but who believes America is engaged in too much lawful immigration. They perceive, incorrectly, that the Obama administration did not zealously deport unlawful immigrants. They believe, conspiratorially, that the Justice Department actively undermined federal immigration law. And in Sessions they see a man who is going to change all that. Who is, in the vernacular of the day, going to restore the rule of law to the position of the Attorney General of the United States. Who is, in other words, going to take back the Justice Department from the lawless gang in power now.
Jeff Sessions is going to be attorney general to a group of people—mostly white people, mostly living far from cities—who perceive that the Justice Department has been their enemy these last eight years. People who disagree with the policy choices the Obama administration made on criminal justice, and immigration, and voting rights, and countless other areas that animate the “rule of law.” People who see the role of attorney general as that of crusader-prosecutor and not as a figure responsible for more broadly ensuring fairness in our justice system. People who don’t want their attorney general to broker disputes between local law enforcement and the communities they serve.
What Jeff Sessions won’t be, or even likely try to be, is an attorney general for the rest of the nation. He won’t be an attorney general who fights for a meaningful right to counsel, a constitutional right that is as much a part of the “rule of law” as any other right over which the Justice Department has jurisdiction. He won’t be an attorney general who fights for sentencing reform or prison reform despite the urgent need for both. He won’t be an attorney general who fights back against the rise of debtors’ prisons. Or one who aggressively questions the incentives behind the rise of private prisons.
That won’t mean that Sessions is a lawless attorney general. It won’t mean that he ought to be delegitimized the way his supporters have tried to delegitimize Holder and Lynch (and, by extension, Obama) these past eight years. What it means is that the Justice Department will be significantly less just to tens of millions of Americans who have for generations looked to it as the one federal agency that could and would at least try to level out some of the many injustices built into that “rule of law” we all tell each other we revere.