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March 29, 2018

Some more perspective on the crime-and-punishment thinking of AG Jeff Sessions

UntitledTime magazine has this new lengthy cover story on Attorney General Jeff Sessions. The whole piece is an interesting read, and here are some excerpts sentencing fans are likely to find of interest:

Sessions believes today’s low crime rates are a direct result of “proactive policing” and harsh sentences, and that dialing them back is causing crime to rise.  According to the FBI, the violent crime rate rose 7% between 2014 and 2016, and the murder rate rose 20%, following years of decline.

Sessions has moved swiftly to unwind the Obama Justice Department’s policies.  He canceled the “smart on crime” initiative and replaced it with a directive to pursue maximal charging and sentencing.  He pulled out of the consent decrees and rescinded Holder’s hands-off marijuana-enforcement policy.  He announced the end of DACA, stepped up deportation orders and sued California over sanctuary cities. 

He has embraced Trump’s call to impose the death penalty on some drug dealers, which some legal scholars consider unconstitutional.  Emphasizing treatment for drug addicts isn’t just ineffective, according to Sessions -- it’s dangerous. “The extraordinary surge in addiction and drug death is a product of a popular misunderstanding of the dangers of drugs,” he told me. “Because all too often, all we get in the media is how anybody who’s against drugs is goofy, and we just ought to chill out.”

In February, Sessions sent a letter warning the Senate that a bill to reduce federal sentences risked “putting the very worst criminals back into our communities.” (An outraged Chuck Grassley, the Republican Senator from Iowa, told reporters that if Sessions wanted to keep making laws, he should go back to elected office.)  Sessions believes his erstwhile colleagues have been misled. “This whole mentality that there’s another solution other than incarceration,” he told me, “all I will say to you is, people today don’t know that every one of these things has been tried over the last 40 years.”

Sessions seemed exasperated when I asked him to address the disproportionate impact of harsh policing and incarceration on black families and communities.  He cited the work of Heather Mac Donald, the controversial conservative scholar who argues that racial bias in the criminal-justice system is a myth and that the real problem is a “war on cops.”  Mac Donald popularized the concept of the “Ferguson effect,” an unproven theory that crime rises when police feel hamstrung by political oversight. Sessions embraces this notion.  In cities like Baltimore and Chicago, he told me, politicians “spend all that time attacking the police department instead of the criminals.”...

Sessions contends that the policies he champions help minority communities by cleaning up their neighborhoods.  “If you do the map of your city and you’ve got five times the murders in a minority neighborhood, do you just go away?” he asked me, eyes narrowed.  “Or do you prosecute the criminals who are committing the murders?  That’s the fundamental answer.  And the other thing is, you think the mothers who’ve got children, the older people who are afraid to walk to the grocery store -- shouldn’t they be free just like they are in the elite part of town?”

Sessions leaned over the plastic airplane table.  “Whose side are you on?” he asked. “I’m on the victims’ side, and overwhelmingly the victims are minorities.  The prosecution of certain minorities for murder, the victim is overwhelmingly another African American or Hispanic.  It occurs within their own communities.” (Law-enforcement statistics show white criminals also tend to target white victims.)

His eyes gleamed as he sat back. “We are protecting minority citizens,” he concluded. “The fundamental question is, Who rules the streets? The government, or the outlaws?”

March 29, 2018 at 06:04 PM | Permalink


After taking a course on marijuana, I became interested in suing Jeff Sessions. His DEA has it classified as a Schedule I substance. This means, highly addictive, no medical benefits.

Only 9% of users become addicted. It has dozens of established medical benefits. It kills 50 people a year, all by impaired driving and car crashes. Doctors tested it on dogs to find proper dosing... in 1850. William Osler had a section on it in his standard medical textbook, Edition of 1913. This nation is really retro.

His Schedule I classification is regulatory quackery. It places an undue burden on the care of dozens of medical conditions.

Posted by: David Behar | Mar 29, 2018 9:17:25 PM

Sessions' mention of victims is very advanced for a lawyer.

Here he opposes the protection of vicious illegal alien gangs by the lawyer.


Posted by: David Behar | Mar 30, 2018 12:08:42 AM

As you can imagine, this has been very stressful for nonviolent marijuana offenders who have sentences of life without parole for marijuana.

Even though they know that they will not be re sentenced to death, this is an indication to them that the public is not aware of how offenders become designated kingpins. This is true even when it is stated that there were no victims.

They all were charged with conspiracy and all went to trial. Because of the charging decision of the prosecutor and the decision of the offender to exercise their 6th amendment right to trial, they are all become designated as kingpins.

The amounts of marijuana they are charged with includes all the weights of all the defendants over a period of years even if they did not participate or even know about the import or distribution.

I received an interesting message from a younger nonviolent marijuana only first time offender who said that if it would call attention to this sentence that does not fit the crime, he would volunteer to be the first nonviolent marijuana only offender (designated kingpin) to be executed. He felt that the reality of imposing and carrying out this sentence would educate the public about prosecutorial practices and their implications.

This federal inmate has a spotless prison resume. He has a prison job, has no infractions, feels that he is preforming useful functions with rewarding relationships with other inmates and staff. Keeping him in prison till he dies is not fiscally responsible and is not just. Execution would be a grotesque perversion of justice.

Posted by: beth | Mar 30, 2018 12:22:20 PM

Beth. I received an email from a distressed mother to help her son, after her reading my comment on the Time article. My reply.

"You should contact the ACLU, Norml, and other advocacy groups.

I am only in a position to sue Jeff Sessions to reclassify Marijuana as a Schedule II drug, and not a Schedule I drug. It has a low addiction rate (9%), and dozens of accepted medical uses. Such a lawsuit may take 4 years. If I smoke 2 packs of cigarettes at age 12, I have a 50% chance of getting addicted to cigarettes. Cigarettes and alcohol kill 500,000 people a year. Marijuana kills 50 people a year, all in car crashes, none directly from marijuana. Endocannabinoid, the substance made by the body to sit on the cannabis receptor all over the body, is the most frequent neurotransmitter in the body. Should we be arrested fro having cannabis in our body already?

You may also try to contact the prosecutor, to make these arguments, the misclassification of marijuana. I will gladly review the available knowledge about marijuana with the prosecutor if they are interested in a review."

No one else is challenging the Schedule I classification to my knowledge on scientific and policy grounds. I want to introduce the concept of the voiding regulations that contradict evidence. I support the retrospective application of the voiding of a violation in a law that is no longer in operation. This Schedule I classification also places on an undue burden on clinical care. It violates the ADAAA. I have not decided if I should throw all violations in the fist claim. The alternative is to put in one violation. It fails, put in another claim, to keep the government in continual litigation for decades. Such litigation, even if it fails, deters the government.

I may list the salient points from a marijuana course I took. I thought I was keeping up with the subject. I only knew 10% of the content. I recommend taking the course to everyone interested in a review of medical marijuana. The course for dispensary employees had the same list of content as mine. I even provided a link to a local course to Prof. Berman. It is on a Saturday morning and may interfere with his golf schedule.

Posted by: David Behar | Apr 1, 2018 12:59:22 AM

David, there have been literally dozens of lawsuits "challenging the Schedule I classification ... on scientific and policy grounds."

A few are discussed at this Wikipedia page: https://en.wikipedia.org/wiki/Removal_of_cannabis_from_Schedule_I_of_the_Controlled_Substances_Act

The most prominent recent effort was dismissed a month ago, as reviewed here:

Posted by: Doug B | Apr 1, 2018 10:46:23 AM

David, I tend to think that cannabis business enterprises, with varying regulations in states that have legalized to some degree or another, will not be safe from federal prosecution unless marijuana is removed from the Controlled Substance Act's Schedule totally.

A large successful cannabis business could easily pass the thresh hold of kingpin status - especially if charged with conspiracy and electing to go to trial.

Falling out of regulatory compliance is not a big jump in many instances. If cannabis businesses are allowed to operate at the state level the federal government needs to get out of the way. Anything short of that makes a mockery of federal law.

Posted by: beth | Apr 1, 2018 8:28:36 PM

The classification violates the wording of the definition of Schedule I, addictive, no benefit. It is far less addiction than many legal activities, with a 9% rate. It has dozens of established medical uses dating from 1850. It's natural, bodily version is a ubiquitous neuromodulator, found in nature all over the body.

I have to read the Washington claim. I doubt they used undue burden, the ADAAA, and regulatory quackery's violating Fifth Amendment due process. I will report back.

As a hypocrite, I would be asking for judicial review, instead of the harder work of lobbying for a change in the law in Congress. Congress responds to only one thing, the votes. So, the even harder task is to persuade the public.

Posted by: David Behar | Apr 2, 2018 1:31:44 PM

I recommended the Washington claim to the course directors for its excellent review of history and of legal issues. Administrative appeals have been listed, and have taken up to 20 years to get a reply, denying a change.

The complaint covered most of my points. The additional ones would not make a difference.


Below is the more likely path to change. Sessions is likely to be fired soon. This Congressman says, he talks to Trump regularly.


Posted by: David Behar | Apr 2, 2018 10:24:31 PM

An additional argument not made. The Rent Seeking Theory. This judge is suggesting returning to an agency. Then, ask it to shrink, and to lose jobs for its employees. That is not humanly possible.

Posted by: David Behar | Apr 3, 2018 8:32:18 AM

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