Five (More) Questions for Jeff Sessions
The views expressed are the author's own and not necessarily those of the Brennan Center for Justice
Senate Republicans already have made clear their intention to rush through President-elect Donald Trump’s cabinet choices this week, scheduling nine confirmation hearings in the span of a few days to ensure that no controversy over any single hearing or candidate dominates media coverage at any given point. But this cynical attempt at promoting cognitive dissonance—expedited to the point where even background checks have not been completed on the nominees—doesn’t mean we shouldn’t or can’t ask tough questions of the men and women Trump has selected to join his team.
And I have plenty of questions for Sen. Jeff Sessions (R-Ala.), who goes before the Senate Judiciary Committee Tuesday and Wednesday in his quest to become the next Attorney General of the United States. On paper, he surely is qualified to be the nation’s chief law enforcement official based on his lengthy experience as a state attorney general, a federal prosecutor, and, most recently, as a member of the Judiciary Committee itself. He understands how the Justice Departments works.
But Sessions may be uniquely unqualified for the position based on his relentless opposition to the rights, priorities, and goals of those within our justice systems for whom few others speak: the poor, the elderly, minorities, and all other ordinary and otherwise powerless people who need a prosecutor who understands that his role must be much more than just prosecuting everything to the fullest extent of the law. As I wrote a few months ago, Sessions must be more than an attorney general for those who share his political views. And there is little in his record that suggests he wants to or can widen his perspective to encompass those who need his support the most. My questions:
Voting Rights. In 2006, Sessions voted (along with everyone else voting in the Senate that day) to reauthorize the Voting Rights Act for another 25 years. In 2013, in Shelby County v. Holder, the five conservative justices on the U.S. Supreme Court gutted the critical preclearance provision of the Act, inviting federal lawmakers to fix what the Court said was broken. Some Republicans, indeed, support new federal legislation that would put more bite back into the law. But there is no indication that Sen. Sessions is among them. Indeed, there is a strong record of his opposition to the Voting Rights Act and of his hostility to those seeking to enforce it.
So the questions are: Does Sessions support a renewed push to amend Section 5 to bring it into constitutional compliance? Would he endorse a national preclearance provision that requires all jurisdictions to check with the Justice Department before implementing changes that make it harder for citizens to vote? And, whether or not he supports such reforms to the Voting Rights Act, does he plan to continue his predecessors’ aggressive approach to discriminatory voter identification laws, including the two (in Texas and North Carolina) that federal appeals courts have identified as unconstitutional?
Police Reform. Sessions has been an outspoken critic of federal intervention in local police departments, even when those departments are racked by misconduct and discrimination in policing. He’s called Justice Department consent decrees unwarranted federal exercises of “raw power.” In the interests of federalism, evidently, he’s going to be content to allow rogue police departments to fix themselves. But of course that begs the question. If police jurisdictions with troubling patterns and practices were willing and able to get their acts together they wouldn’t need to be sued by the feds or otherwise forced into consent decrees in the first place.
So the questions are: When, if ever, does Sessions believe that police consent decrees are necessary to ensure that the constitutional rights of citizens are protected and that bad cops are held accountable for misconduct? And how strongly is Sessions willing to push against police unions that consistently have sought to delay or restrict the scope of reforms designed to better protect the rights of civilians in any given jurisdiction? Does he believe that those who protest police misconduct, and racial bias in policing, have legitimate grievances? And, if he does, how should they manifest those grievances?
Asset Forfeiture. In criminal justice the conservative cause de jour is asset forfeiture reform and it’s not hard to understand why. The idea of the police (and prosecutors) seizing money and other assets from civilians without proof that those citizens are connected to criminal activity goes to the core of the theory of government overreach. But asset forfeiture reform is a bipartisan cause these days. It has strong support from progressives and libertarians, too. Everyone is on board, it seems, except for Jeff Sessions. The prosecutor in him still sees forfeiture as a valuable, revenue-generating law enforcement tool.
So the questions are: How does Sessions square his dogged support for civil asset forfeiture with traditional conservative principles that value, among other things, property rights and due process? How does he square his support for the taking of cash and other assets with conservative principles that scorn the intrusion of “big government” into the lives of individuals? And where does he stand on other forms of “predatory policing” that consigns to cycles of poverty and crime those least able to pay the bill presented by police and prosecutors?
Federal prison reform. If you have been listening at all these past few years to Michael Horowitz, the Justice Department’s Inspector General, you know that the federal prison system is, in many ways, a hot mess of abuse, waste, and neglect. There are too many federal inmates, and too many elderly ones needing expensive medical care, and the Bureau of Prisons, like most massive bureaucracies, has done a terrible job of fixing its own problems. There is still not nearly enough transparency and accountability within the federal prison system and too many prisoners exist today in unconstitutional and dangerous conditions of confinement. Even Eric Holder and Loretta Lynch, Sessions’ immediate predecessors, who were sensitive to the BOP’s problems, failed to achieve necessary reforms.
So the questions are: Does Sessions believe that elderly and infirm federal prisoners should continue to be incarcerated at great expense to taxpayers or does he believe that the federal compassionate release program at last should be kicked into high gear? Does he believe that solitary confinement should continue to be restricted within the federal prison system and only employed for short periods in rare circumstances? Will his Justice Department continue the work implemented by his predecessors so that non-violent federal drug offenders can have their sentences commuted?
The war on drugs. Sessions has consistently supported harsh sentences for drug crimes (even though he endorsed reform legislation to ease disparities in cocaine sentencing) and the kind of overzealous prosecutions that helped fuel federal mass incarceration in the first place. He also has consistently expressed scorn toward the growing number of Americans who use legalized marijuana. He is, by all accounts, an old-school drug warrior. As attorney general he will have tremendous power to direct policies for local federal prosecutors. He may, like his predecessors, instruct line prosecutors not to aggressively pursue cases involving medical marijuana. Or he may instruct those prosecutors to ratchet up those prosecutions (which is likely what his new boss, Donald Trump, will call on him to do).
So the questions are: Is Sessions prepared to take federal money and resources away from the fight over opioid trafficking and spend it on fighting marijuana cases in the growing number of states that have legalized recreational or medical marijuana? Will he declare “war” on the marijuana industry and thus turn into criminals the thousands of men and women who have invested in that industry as authorized by their local state laws? And, if so, how does he square that federal intrusion with his stated conservative principles that support federalism and thus a limited role for the federal government in the lives of citizens, tens of millions of whom have voted for marijuana legalization?