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Jeff Sessions Without Tears

The only question about the new attorney general is how far back he’ll set the Justice Department.

February 9, 2017

An abridged version of this piece originally appeared at Esquire.

Now that Jeff Sessions has been confirmed as the next attorney general of the United States, now that he’s in charge of a Justice Department already embroiled in political controversy, now that he’s the first line of defense against a president whose business conflicts, and ties to Russia, are being investigated, it’s time to be clear about the man Republicans have chosen as the nation’s chief law enforcement official. Time to be clear about whom Sessions will fight for, and whom he will fight against, in the years to come.

Sessions will be an attorney general for police unions and sheriff associations, and for those line officers who believe — against the great weight of evidence — that the profession of policing itself is under attack. He will nurture those who believe that criticism of bad cops taints all cops. When the time comes to commit to federal oversight over police departments that have long have exhibited patterns and practices of misconduct or discrimination, he will hesitate in the name of federalism, for the purpose of not offending law enforcement communities with what he calls “overreach.” Vital reforms that would save lives (of both police and civilians) simply won’t happen.

What Sessions won’t be during his tenure at the Justice Department is an attorney general for those who most need his help and support the most. Sessions will not prioritize  citizens who have had their lives ruined by racial disparities in policing or by the persistent use of excessive force by officers who are shielded from accountability. He won’t be an attorney general who will side with those who are victimized by predatory police practices or those consigned by petty judges to cycles of poverty and crime, or those circulating in and out of a new generation of debtors’ prisons.

On this, Sessions and his new boss, President Trump, have been clear.

Nor will he be an attorney general who will wrestle publicly (or at all) with the difficult tension all public officials must face between supporting the police (as we all do) and acknowledging the legitimate complaints of those who are abused by police practices. He will instead be the attorney general who last summer praised Trump for the infamous “Central Park Five” advertisement the mogul took out in 1989, which advocated for the death penalty for a group of teenagers accused of beating and raping a woman. (They ultimately were exonerated, and paid huge settlements for the wrongful convictions they endured — facts that did not dissuade Trump or Sessions from their views.) 

Sessions will be an attorney general for prosecutors, naturally, given his background as a prosecutor and the nature of his looming job at Justice. But he won’t just support, as any DOJ executive would and should, the many honest and fair prosecutors who help enforce federal criminal law in a just and measured way. His record suggests that he will be lax in identifying and then punishing those who commit prosecutorial misconduct, say, by withholding material exculpatory evidence in criminal cases. In fact, he’s on record saying that he sees rogue prosecutors as victims of defense attorneys. The cost of such a cynical view — human as well as financial — is enormous.

Taking their cue from the attorney general, who said during his confirmation hearing that he thinks that too many federal sentences are too short, line prosecutors will now be emboldened to pile on charges (and thus prison terms) for federal drug defendants. This means more men and women convicted of nonviolent crimes will face longer prison sentences at a time when federal prisons are already overcrowded and when the Bureau of Prisons’ budget already consumes such a large share of the Justice Department’s budget that it is straining to fund other vital priorities — like those of victims’ rights groups.

Just as the nation is turning away from mass incarceration, and discovering that crime rates can go down along with incarceration rates, Attorney General Sessions is poised to reverse course. He already made it clear with his opposition to bipartisan sentencing reform last year that he has little compassion or empathy for the families affected by the enforcement of unduly harsh sentencing laws. He has made this clear also with his adamant and relentless opposition to presidential clemency, even in cases of manifest injustice that shocks the conscience. A whole new generation of men and women, and their families, will be doomed to unreasonably long prison terms.

Even as he revs up the engine of mass incarceration, Sessions won’t be an attorney general who emphasizes the need to identify and rectify wrongful convictions. He will not fight for the right of criminal defendants to be ably represented in court so that fewer wrongful convictions occur in the first place. He won’t be an attorney general who questions the validity of forensic evidence, even when experts conclude that its reliability and accuracy is dubious. There are two types of prosecutors in the world: Those who care  only about convictions, and those who take a broader view of justice. Sessions has made it clear, both in Alabama and on Capitol Hill, that he is the first type of prosecutor.

Sessions’s confirmation hearing reminded us that he will be an attorney general for vote suppressors and perpetrators of the voter fraud myth. Under the guise of protecting democracy from a threat that does not exist, he will be an attorney general who allows more jurisdictions to enact voting restrictions that make it harder, or impossible, for the elderly, the poor, and citizens of color to cast a valid ballot. He will be an attorney general who looks for excuses not to file aggressive litigation designed to protect voting rights. He will be an attorney general who is as feckless in this area of the job as he has shown to be fearless in prosecuting dubious voter fraud cases.

What Sessions won’t be is an attorney general to whom the dispossessed or marginalized may look for help in securing their voting rights. The senator, who cheered the Supreme Court’s gutting of the Voting Rights Act, and who then refused to support a legislative fix for it, isn’t going to turn on a dime and fight back against the next wave of restrictive voting laws that Republican lawmakers are planning (and that Trump’s newly constituted conservative Supreme Court likely will endorse). Sessions has a long record of antipathy for voting rights as civil rights. And now he’ll have the power to turn that antipathy into federal policy.

Sessions will be an attorney general for those fighting against abortion and reproductive rights. He will be an attorney general fighting against those who believe there still should be a strong wall between church and state. He will be an attorney general fighting to defend immigration laws and policies that are un-American, and unsafe, and that already have harmed our stature around the world. Sessions isn’t going to be an attorney general who orders federal officials to rescue the immigrant baby detained at the airport. He’s going to be the attorney general on the side of the angry and fearful faction that wants to keep that baby there or send that baby away.

So the question today isn’t how quickly the progressive legal reforms of the past eight years will be halted during the new attorney general’s reign. The question is how far back into our grim history of injustice the new policy choices will take us. Is the Justice Department under Sessions headed back to the Reagan-era, when it helped the fuel mass incarceration we face today, and when it was largely blind to racial disparities in criminal justice? Is it headed back to the grim policies of Alabama in the 1990s, when and where Sessions served with so little distinction? Or is it headed back just a decade, to the George W. Bush era, when partisan hacks gravely damaged the Department’s reputation?

There is no mystery about what lies ahead. It’s all there in the long public record of Jeff Sessions, in the allies he’s courted and the enemies he’s made. It’s there in the recent history of his views on criminal justice and his long-held positions on voting rights in Alabama and beyond. It’s there in the way he failed or refused to adequately fill out his Judiciary Committee questionnaire or answer questions about his involvement in the creation of the Muslim travel ban. It’s there in the way he’s ingratiated himself with malevolent political operatives like top Trump aide Steve Bannon. It’s there in his long career embraced and emboldened by the forces of white supremacy, white nationalism, and fear of demographic change.

Jeff Sessions is going to be a fantastic attorney general for some of the people who voted for Donald Trump. To them he is going to restore what they perceive to be “law and order” and the “rule of law.” For the many millions more who did not vote for Donald Trump, however, Jeff Sessions will be another constant, daily, ruinous reminder of the enormous step backward the nation has just taken for those who most need the protection of the law and an honest broker at the Justice Department. To paraphrase the late Antonin Scalia: “This wolf comes as a wolf” — and none of us should be surprised at what happens next.

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