Motivated by his deep-seated biases and those of President Donald Trump, Attorney General Jeff Sessions is pursuing a draconian agenda on voting rights, immigration, crime, policing, the drug war, federal sentencing and the privatization of prisons.
Sessions, now head of the Department of Justice, which is charged with enforcing the Voting Rights Act, once called the act “intrusive.” In 2013, after the Supreme Court issued a decision in Shelby County v. Holder that struck down the section of the act that established a formula for preclearance of jurisdictions with a history of racial discrimination, Sessions called it “a good day for the South.”
Sessions and Trump tout the existence of what the Brennan Center for Justice at New York University Law School calls a “phantom crime wave.” While this administration scaremongers about high crime rates, in reality, national crime and murder rates are at a near-historic low: 50 percent less than they were at their peak in 1991.
Trump’s campaign mantra was “law and order,” a euphemism for tolerating excessive force by police officers, often against people of color. Trump speaks of “American carnage” in the cities and a “war” on the police. His bogus rhetoric is aimed at Black Lives Matter, which arose in response to increasing numbers of police shootings, particularly of nonwhites.
The president depicts police reform measures as “anti-law enforcement” and Sessions is fully on board with this framing. In 2015, when he was a senator, Sessions said that police reform movements endanger public safety and hinder police work.
Sessions opposes consent decrees, which are court-enforced agreements aimed at eliminating racial profiling and excessive force by police in agencies that demonstrate “a pattern or practice” of violating civil rights. Sessions says the federal government should not be “dictating to local police how to do their jobs” (except when it comes to immigration enforcement, that is).
Amnesty International warns that Trump and Sessions’ “law and order” rhetoric could lead to higher levels of mass incarceration, long sentences and prolonged solitary confinement.
Voting Rights in Peril
Sessions has reversed the Obama Justice Department’s practice of challenging voter identification laws, which erect obstacles to minority voters. Sessions directed his Justice Department to intervene in favor of states that enact measures to discriminatorily restrict ballot access.
In February, Sessions’ Justice Department asked a federal district court to dismiss the Obama Justice Department’s claim that the 2011 Texas voter ID law was passed with an intent to discriminate against minorities. But in April, Judge Nelva Gonzales Ramos concluded that intentional discrimination against minority voters constituted “at least one of the substantial or motivating factors behind passage” of Texas’ voter ID law.
Sessions’ racist agenda is already animating his attack on the most basic guarantee in a democracy — the right to vote.
Racist Immigration Policies
Trump and Sessions are not disappointing the white nationalists who favor using immigration policy as a wedge to further their “alt-right” program.
Kevin de León, President pro Tempore of the California State Senate, noted, “It has become abundantly clear” that Sessions and Trump “are basing their law enforcement policies on principles of white supremacy — not American values.”
From January to mid-March of this year, immigration arrests have increased by 33 percent. Since Trump’s inauguration, the number of arrests of immigrants with no criminal records has doubled. Roughly half of the 675 arrested in early February raids had either driving convictions or no criminal record at all, according to data obtained by The Washington Post.
Sessions drastically increased penalties for illegal reentry into the United States and ordered immigration officials to charge undocumented immigrants with higher-penalty crimes.
Although Sessions’ heavy-handed actions are based on Trump’s spurious claim that immigrants disproportionately murder and rape US citizens, studies have shown that immigrants actually commit fewer crimes than citizens.
Agents from Immigration and Customs Enforcement (ICE) are arresting immigrants who come to the courthouse. This egregious practice motivated California Supreme Court Chief Justice Tani Cantil-Sakauye to complain in a letter to the Departments of Justice and Homeland Security that ICE agents “appear to be stalking undocumented immigrants in our courthouses to make arrests.”
Terrorizing immigrants with frightful measures discourages immigrant witnesses from reporting crimes, and discourages victims from seeking legal measures and services that are meant to protect their own safety and well-being.
By March, the Los Angeles Police Department had seen a 25 percent drop in the number of Latinos reporting sexual assault and a 10 percent decrease in Latinos’ reports of domestic violence. By early April, there was a 42.8 percent drop in the number of Latinos who reported rapes to the Houston Police Department. And a health care center in Los Angeles reported a 20 percent decrease in food stamp enrollments and a 54 percent drop in enrollments for Medicaid.
The Trump administration has been arresting — even deporting — “Dreamers” who relied on Barack Obama’s assurances they would be protected if they came out of the shadows and provided their personal information to ICE. Dreamer Juan Manuel Montes Bojorquez is a registrant in Obama’s Deferred Action for Childhood Arrivals (DACA) program, and was the first DACA recipient to be deported. Bojorquez, who is now in Mexico, is suing the US federal government.
On January 25, 2017, Trump signed an executive order to halt federal funding to municipal governments that don’t facilitate federal immigration enforcement. Trump’s order is aimed at “sanctuary cities” that protect immigrants from deportation.
In March, Sessions threatened officials in nine jurisdictions with losing their 2016 grants if they failed to certify by June 30 that they were in compliance with a law that forbids local authorities from forcing officials to withhold information about immigration status from federal authorities.
But the majority of sanctuary policies do not cover information sharing. Most address how to handle “detainers,” where federal immigration officials request that state or local authorities continue to detain people who are eligible for release. Courts have said jurisdictions cannot be forced to honor those detainers.
Trump’s January 25 order is blocked, for now. US District Judge William H. Orrick III issued a nationwide preliminary injunction that forbids the federal government from withholding funds from municipal governments that don’t fully cooperate with immigration agents.
Orrick also ruled the federal government can’t legally force counties to hold undocumented people beyond their release dates. The judge concluded Trump’s order likely violates due process, the separation of powers doctrine, and the 10th Amendment, which prevents federal interference with state and local self-government. Only Congress can limit spending, Orrick wrote.
This is Trump’s third executive order halted by federal courts. His first and second Muslim bans are now pending in the 9th and 4th Circuit Courts of Appeals.
Giving Police Free Reign
Sessions walks in lockstep with Trump on his “law-and-order” agenda. In an op-ed published in USA Today on April 17, Sessions decried a “plague of violence,” claiming, “Violent crime is surging in American cities.” In fact, crime is at or near an all-time low in many parts of the United States.
The implicit message in Sessions’ op-ed was that people of color, particularly African Americans, are a threat to white America. Indeed Trump’s election largely reflected a backlash against having a Black man in the “White” House.
“Images of feral, criminal black people carry great weight in the political imaginations of white voters, especially those who supported Donald Trump,” Chauncey de Vega wrote in Salon. “As such the truth is sacrificed for the twin purposes of political expediency and serving America’s longtime obsession with ‘black crime’.”
In his op-ed, Sessions suggested, “To combat this wave of violence and protect our communities, we need proactive policing.” Moreover, he claimed in an interview on the conservative Howie Carr radio show that consent decrees “push back against [officers] being on the street in a proactive way” because they “reduce morale.” He wrote in his op-ed that consent decrees may amount to “harmful federal intrusion” and said cities under consent decrees have “seen too often big crime increases.”
Sessions has rolled back Obama-era oversight of local police and authorized a review of 14 active consent decrees between city police departments and the federal government.
In fact, many police departments welcome consent decrees. Seattle saw a 60 percent reduction in the use of moderate to severe police force, according to Merrick J. Bobb, who monitored Seattle’s 2011 consent decree. Bobb wrote in the Los Angeles Times, “Expanded community confidence appears to be inspiring more cooperation with the police in solving crime and addressing neighborhood problems.” Under Seattle’s consent decree, Bobb noted, “police are not being placed at any higher risk nor are they less able or willing to use force to defend themselves than in the past.”
New Orleans Mayor Mitch Landrieu told HuffPost his city is not “less safe because of consent decrees.”
The crime rate in Newark, New Jersey, is the lowest in 50 years. Peter Harvey, who monitored Newark’s consent decree, said, “In virtually every city that has had a consent decree, shootings have gone down, killings have gone down, judgments against the city have been reduced, and morale in the police department has been raised and morale in the community has been raised.”
Why aren’t consent decrees meeting with intensive pushback from city officials?”Because you’re not inviting the police not to patrol,” Harvey said in an interview with HuffPost, “you’re not inviting the police not to enforce the law, you’re inviting the police to follow constitutional mandates.”
We can also expect to see increased militarization of the police under the Trump administration, with more surplus military equipment provided to local law enforcement. That includes drones, body armor, assault vehicles and high-powered weapons. Turning cities into war zones will only exacerbate tensions.
Regressive Drug Policy
The Obama administration directed federal prosecutors to make violent and serious crime a top priority and avoid charging harsh “mandatory minimum” penalties in certain low-level drug cases. Mandatory minimum sentences remove discretion from judges to tailor sentences to the individual and fuel mass incarceration that disproportionately targets people of color.
Eric Holder, Obama’s attorney general, gave states, many of which have legalized marijuana for medical and/or recreational purposes, some leeway to set marijuana policy. He also directed federal prosecutors to reduce charges in low-level nonviolent drug cases. As a result, the federal rate of imprisonment has fallen by 9.5 percent since 2007, according to the Brennan Center.
In 2016, Sessions declared, “good people don’t smoke marijuana,” warning of a “very real danger” posed by the drug. It’s “not the kind of thing that ought to be legalized.” We may see Sessions prioritize enforcement of federal marijuana laws, to the chagrin of millions of people across the country who voted for legalization in their states.
More Repressive Federal Sentencing
Last year, leading Republicans, including Sens. John Cornyn (R-Texas) and Chuck Grassley (R-Iowa) and House Speaker Paul Ryan (R-Wisconsin) spearheaded a bipartisan attempt to pass a bill that would have reduced mandatory minimum sentences for some nonviolent and drug offenses. Then-Senator Sessions, who led opposition to the bill, called it a “criminal leniency bill.” Sen. Majority Leader Mitch McConnell prevented the bill from coming to a vote in order to avoid a split in the party.
Increasing Privatized Prisons
Obama and Holder were winding down the use of private prisons. The Brennan Center reports that private penitentiaries have a number of problems, including: “higher rates of assault against other inmates and staff; inmates inappropriately housed in solitary confinement units due to overcrowding when those units should have been used for disciplinary or administrative reasons; many more contraband issues; and almost ten times more security lockdowns.”
Nevertheless, candidate Trump, who called our prison system “a disaster,” said, “I do think we can do a lot of privatizations and private prisons.” Sessions has reversed the Obama-era policy of phasing out the use of private prisons.
An Ill-Equipped Attorney General
After Trump nominated Sessions for attorney general, Rep. Luis Gutiérrez (D-Illinois) stated, “No senator has fought harder against the hopes and aspirations of Latinos, immigrants and people of color than Sen. Sessions.”
Indeed, no one is worse equipped to lead the Department of Justice. Sessions’ racism is prominently on display in every action he has taken during his short tenure in Trump’s cabinet.
It is critical that “we the people” continue to resist, in every way we can, the Trump-Sessions pattern and practice of injustice.
Marjorie Cohn is professor emerita at Thomas Jefferson School of Law, former president of the National Lawyers Guild, and deputy secretary general of the International Association of Democratic Lawyers. Her books include The United States and Torture: Interrogation, Incarceration, and Abuse; Cowboy Republic: Six Ways the Bush Gang Has Defied the Law; and Drones and Targeted Killing: Legal, Moral, and Geopolitical Issues. Visit her website: MarjorieCohn.com. Follow her on Twitter: @MarjorieCohn.