What Does Sessions' Departure Mean for Criminal Justice?

On bipartisan sentencing reform legislation, policing, marijuana, and much else, there's a chance for progress

November 8, 2018

Whatever the forced resignation of Jeff Sessions means for the future of Special Counsel Robert Mueller’s Russia investigation, the future of the Trump administration, or the rule of law more generally, a new head at the Department of Justice surely will have a profound effect on criminal justice in America. 

For example, if Matthew Whitaker, the Trump loyalist and interim attorney general, lasts for any significant period in that role, he will have to make a decision about whether or not he supports passage of the First Step Act, the pending bipartisan sentencing legislation. His predecessor, pointedly, did not, putting him at odds with President Trump, the president’s son-in-law Jared Kushner, and some progressive reformers who felt the law didn’t go far enough in helping federal inmates.

Sessions’ position on the First Step Act also put him at odds with congressional Republicans, including Sen. Charles Grassley, the Senate Judiciary Committee chairman, who presumably will play a significant role in any confirmation for a new attorney general, if such a hearing is needed. Grassley has long supported sentencing reform and said this summer that the Trump administration would tackle prison reform after the midterm election. Perhaps Sessions’ ouster makes that easier.

In fact, there was concern among reform advocates that Sessions might even resist faithfully implementing the bill if passed. So we should watch to see whether Whitaker, too, tries to find ways to stymie the measure if it passes, for instance by not letting prisoners take advantage of the prerelease custody authorized by the bill, or instructing the Bureau of Prisons (BOP) to deny every request.

Another flashpoint for the new acting attorney general is policing. Sessions made it clear, in speech after speech to police officers and police union officials across the country, that he believed the consent decrees imposed on police forces by the Obama administration undermined rather than improved policing. “Undemocratic,” was the word he used to describe the federal decree with Chicago police — a deal that came after an exhaustive federal investigation revealed systematic patterns of misconduct and discrimination by police there. 

Will Whitaker or his more permanent successor tether their views of police reform more closely to evidence and facts, or will they continue to undermine existing decrees by claiming America is in the throes of “carnage” on our streets, as Trump has put it? Sessions also took every opportunity to blame the ACLU and the Black Lives Matter movement for what he called rising violent crime rates even in cities, like Chicago, where violent crime rates actually have fallen in recent years. Will Whitaker take the same approach?  

There is no reason to think that Whitaker, or anyone else Trump might select to replace him, will feel any less effusive about the federal death penalty than did Sessions. The former attorney general repeatedly called for a more expansive use of capital punishment for certain federal drug crimes. But the use of the federal death penalty is an issue that is bound to come up, perhaps soon, given the federal hate crime prosecution of the anti-Semitic man alleged to have murdered 11 people last month in a Pittsburgh synagogue.

Nor is there any reason to think that Whitaker or his successor will be any less aggressive in trying to combat the opioid epidemic through the use of more aggressive drug prosecutions or requests for harsher sentences for those convicted of drug crimes. But does Whitaker feel differently about marijuana, medicinal or recreational, than did his successor? All you need to know about Sessions and pot is that marijuana stocks rose sharply Wednesday after news of Sessions’ resignation filtered through to the markets. And does Whitaker believe that the death penalty should apply to drug dealers whose clients overdose?

Whitaker, if he lasts, surely could do no worse than Sessions when it comes to reforming the BOP, which is chronically understaffed and overpopulated. Just last month, famed mobster James “Whitey” Bulger was murdered at the federal penitentiary in Hazelton, West Virginia, a place notorious for its violence and lack of oversight. Will Whitaker, a former federal prosecutor, listen more closely than Sessions did to the DOJ’s own inspector general, who for years now has warned that the BOP is poorly managed in many respects?

Sessions’ departure and Whitaker’s ascension likely won’t mean much change for for the Trump administration’s immigration policies. There is no reason to think that Trump selected Whitaker, from among other choices, because the White House now plans to back away from its dubious claim that migrant families have no lawful right to seek asylum at our borders. And there is no reason to think that whomever the administration chooses to replace Whitaker will last long if she or he refuses to implement the White House’s policy initiatives at the border or anywhere else.

Whether Whitaker stays long-term or whether a new nominee is named by Trump, the role Congress will play in whatever happens next at the Justice Department changed significantly after Tuesday’s election. Democrats who will soon lead committees in the House of Representatives surely will seek to hold Whitaker and company more accountable than their Republican counterparts did when Sessions came to Capitol Hill. And Senate Republicans will likely embrace Whitaker, or whomever succeeds him, as much or perhaps more so than they did Sessions.  

Photo: Justin Sullivan/Getty

The views expressed are the author's own and not necessarily those of the Brennan Center for Justice.