The past week taught us two important and related lessons about the nascent reign of Jeff Sessions as head of the Justice Department. The first is that the feds have a credibility problem when it comes to its Trump-infused reversal on policing consent decrees. The second is that the attorney general himself has a credibility problem when it comes to his plans for a new federal offensive in the endless and unwinnable war on drugs.
The first notable development came in Baltimore where both a federal judge and local officials rejected the Justice Department’s attempts to delay or stymie the sweeping consent decree hammered out in the waning days of the Obama administration. The episode, which played out in public over a few excruciating days, completely undermines the essence of the Trump administration’s spin on policing: that the reforms of the Obama regime represent federal overreach.
The most vocal supporters of the Baltimore agreement were precisely those local officials and residents that Sessions (and President Trump) say are the ones suffering under the yoke of federal tyranny when it comes to the pace and breadth of police reform. The feds essentially said last week—to Baltimore officials, to the federal judge presiding over the case, and to the rest of us: “Who are you going to believe when it comes to the need for consent decrees like this? The new Justice Department or your own eyes?”
The answer is clear. In the real world, a world that has read and absorbed the grim details of the Justice Department’s own exhaustive findings from Baltimore and Chicago, a legal and political consensus has emerged and is holding. It responds to Sessions and company very clearly: “No one here believes your theory that rampant police misconduct and discrimination in these jurisdictions are the results of a few ‘bad apples.’ No one here believes that less police accountability and transparency will solve these problems.”
If a single police official in any jurisdiction currently covered by a federal consent decree came forward last week to endorse the Justice Department’s new skepticism about such remedies I did not see it. What I saw instead was praise for the Justice Department from police union officials, who have fought one reform after another virtually everywhere those reforms are needed. Officials from some of these unions complained bitterly during the Obama era that they were the ones suffering under the yoke of federal tyranny. Now they are pleased that the Justice Department is trying to tip the scale in their favor and against the very citizens police officers are supposed to protect and serve.
On Friday, after the judge dismissed the Justice Department’s delaying tactics, Sessions said: “The mayor and police chief in Baltimore say they are committed to better policing and that there should be no delay to review this decree, but there are clear departures from many proven principles of good policing that we fear will result in more crime.”
The Justice Department should immediately identify which reforms “will result in more crime,” which “proven principles of good policing” are being abandoned, and why federal officials think this will be so. In particular, federal officials should tell us whether they think the new reforms will cause police officers to stop doing what we pay them to do, which is to patrol their beats without succumbing to the so-called “Ferguson Effect,” which is a nice way to say “work slowdown.”
The second notable development unfolded over the weekend with a story in The Washington Post in which Sessions and his fellow drug warrior Steve Cook reiterated their case for an aggressive new approach to federal drug prosecutions. The headline: “How Jeff Sessions want to bring back the war on drugs” is misleading since the “war on drugs” never really went away (even Barack Obama, the great reformer, granted a measure of clemency to only a small fraction of nonviolent federal drug offenders).
But the real takeaway from the piece is that, unlike earlier iterations of the war on drugs, there is little reason to think that state lawmakers and prosecutors are going to fall into the same mass incarceration trap their predecessors did in the 1980s and 1990s (and for which we are all still paying today). This is especially true in those countless jurisdictions where crime rates remain at or near generational lows and where lawmakers have spent the past years figuring out ways to reduce their prison populations and finding innovative ways to tackle drug use and abuse.
Even if Sessions and Cook want to ramp-up federal drug prosecutions—thus dooming the Bureau of Prisons to yet another generation of overcrowding that strains the Justice Department’s budget—a mountain of research undermines the connection the two make between harsh federal sentencing and crime rates. Sessions must have been absent nearly three years ago to the day when a comprehensive report by the National Academy of Sciences concluded, “lengthy prison sentences are ineffective as a crime control measure.” The facts and the evidence vitiate the outdated but convenient “tough-on-crime” trope that Sessions and Cook are pitching. Which is why Congress remains open to precisely the sort of bipartisan sentencing reform that Session and Cook oppose.
Here, too, then, there is a credibility gap. State and local legislators, police, prosecutors, and judges simply aren’t willing to automatically buy what Sessions is selling. At least not yet. At least not now. If states don’t go along with the Trump administration’s push to fill up prisons again, a new wave of mass incarceration simply isn’t going to happen. The opioid epidemic could change the calculus—and already some jurisdictions are increasing sentences for drug dealers—but it’s hard to imagine any state increasing criminalization of marijuana, for example.
Ironic, isn’t it, or maybe just infuriating, that the same administration that blasted the Obama team for failing to heed the wisdom of local voices is doing precisely that in two of the great criminal justice issues of our time. It’s almost as if Jeff Sessions and the law-and-order warriors he’s surrounding himself with are starring in their very own version of 1968 movie classic, “The Producers.” The play’s storyline is comically absurd, the ideas are horrendous, and the audience watches because it’s too hard to turn away from the wreck.
The views expressed are the author’s own and not necessarily those of the Brennan Center for Justice.
(Image: Flickr.com/ Gage Skidmore)