Marijuana is still illegal under federal law, and hundreds of thousands of people are arrested every year for smoking, growing, or selling the drug.
But over the past eight years, President Obama has commuted the sentences of hundreds of nonviolent drug offenders serving decades-long prison terms — signing more commutations than any other president in history. He encouraged a bipartisan effort in Congress to lower harsh mandatory sentences for drug offenders. He expanded the amount of marijuana grown for medical research. His Justice Department opted to leave alone states that decriminalized and legalized marijuana to varying degrees. Under his tenure, eight states and the District of Columbia legalized recreational marijuana, and nearly 30 states now allow its use in some form.
Sen. Jeff Sessions (R-AL), Donald Trump’s nominee to become the nation’s next Attorney General, opposed these steps at every turn.
Sessions declared last year that “ good people don’t smoke marijuana,” and worked to block Senate efforts to pass drug sentencing reform, which he called a “criminal leniency bill.” He also accused the Obama Administration of “playing a dangerous game to advance his political ideology” for commuting the sentences of low-level drug offenders, and called Obama-era drug policy reforms a “tragic mistake.”
The last time he was up for a federal appointment, Sessions’ confirmation hearing revealed that he once said he thought the Ku Klux Klan were “okay, until he learned that they smoked marijuana.” This and other incidents from his past tanked his bid to be a federal judge.
Ahead of the Senator’s two-day confirmation hearing to lead the Justice Department, which begins on Tuesday, civil rights and drug policy experts are calling attention to his record on marijuana, and warning that he could bring back a 1980s-style war on drugs.
A harsh history
Before Sessions came to Congress, he worked as U.S. Attorney for the Southern District of Alabama, and his office zealously prosecuted drug offenders.
A report by the Brennan Center for Justice at New York University found that during Sessions’ 12 years as a U.S. attorney, he shifted resources away from prosecuting violent crimes in order to try more people for drug offenses. “Drug cases made up more than 40 percent of his office’s convictions, and just 20 percent of convictions for other U.S. Attorneys in Alabama,” the report found. “Sessions’s office also obtained harsher sentences in drug cases — but with a comparable overall rate of recidivism.”
Sessions brought this ethos with him to Congress, where he fought against any attempt to lessen penalties for marijuana use. He railed against President Obama’s “Smart on Crime” initiative, which sought to reduce mandatory minimum prison sentences for low-level drug crimes. Sessions also successfully ended a multi-year effort to pass comprehensive criminal justice reform — blocking a bill that would have drastically reduced federal prison sentences for non-violent drug offenses. Sessions warned the bill, a historic effort by members of both parties, would “endanger millions of Americans.”
“We need grown-ups in charge in Washington to say marijuana is not the kind of thing that ought to be legalized,” he said at a Senate hearing in April.
Sessions also blasted the Obama Justice Department for declining to crack down on the marijuana industry in states that voted to legalize, and called for a revival of Nancy Reagan’s famously ineffective “Just Say No” campaign.
What could Trump and Sessions do?
If Senators vote to confirm Sessions as Attorney General, as they are expected to do, the Alabama Republican could enact sweeping drug policy changes without approval from Congress. Because many of President Obama’s reforms consisted of agency memos and executive actions, they can easily be stripped away.
“He could reinstate the old model of federal prohibition,” explained Sanho Tree, the director of the Drug Policy Project at the Institute for Policy Studies. “Ironically, black market growers would benefit from this.”
If he chose to do so, Sessions could direct the Justice Department to go after every single person who participates in the marijuana industry in states that have legalized the drug. He could order raids of legal marijuana farms and dispensaries, prosecute anyone who rents to or lends money to a pot shop, and even arrest elderly or terminally ill patients who buy prescription weed to ease their suffering. He could also direct prosecutors to pursue the harshest sentences possible when trying drug offenders, and he could sue states that have voted to legalize.
The only thing that would stop him, said Tree, is public opinion. “When you have a right exercised by so many Americans, that’s become so normal, you can’t take that away very easily,” he said. “You have a multi-billion dollar industry now with all kinds of legal contracts and real estate, and to try to undo that with a stroke of a pen would be madness — politically.”
Tree noted that legal marijuana is extremely popular with the voting public, and contributes billions of dollars in tax revenue to state coffers — two factors that could motivate lawmakers from both parties to stand up to an attempt to crack down on the industry.
Some Congress members are already sounding the alarm. “In one fell swoop,” Rep. Jared Polis (D-CO) warned, “the federal government could damage state economies, and discourage entrepreneurship — placing some of our innovators behind bars, all while eroding states’ rights.”
Pro-legalization activists have tried this year to pin Sessions down on exactly what he would do if confirmed, with little success.
D.C. resident Adam Eidinger secured a meeting with Sessions’ Senate staff by threatening to light up a joint in his office in violation of federal law. He told ThinkProgress he used that meeting to ask: “Are you going to respect state marijuana and legalization laws? Are you going to continue the Cole Memo policy to make [marijuana enforcement] a low priority? We also asked about what will happen to [the decriminalization law in] D.C., since it isn’t a state.” Eidinger says Sessions’ staff has so far offered “absolutely no response” to these questions.
As the nation’s “top cop,” Sessions would have to answer to Donald Trump. But as with many other issues, Trump’s plans for marijuana policy are anyone’s guess. He said in 2015 that he supports medical marijuana but thinks legalizing its recreational use is “bad.” When pressed on whether states that voted to legalize should be left alone, he offered only the vague statement: “If they vote for it, they vote for it.”
More troublingly, the president of the Philippines, Rodrigo Duterte, claims Trump praised his approach to illegal drug use — which has involved executing thousands of civilian drug users and dealers — in a phone call.
“He was wishing me success in my campaign against the drug problem,” Duterte boasted.
What could Obama do?
As of the publication of this piece, President Obama has 10 days left in office.
Marijuana reform advocates have long called on the president to officially take marijuana off the list of “Schedule 1” substances — drugs determined to pose a danger to the public and to have no medical value. He has declined to do so over the last eight years, and is not likely to act in his remaining days in the White House.
Eidinger, who has led many protests in D.C. over the last eight years calling for the government to reschedule cannabis, plans to carry his advocacy into the new administration. On inauguration day, he plans to hand out thousands of free joints, and he and others plan to risk arrest by smoking it in public during Trump’s speech. With this act of civil disobedience and others planned for the future, he hopes to force a conversation about where the country is going in terms of drug policy.
“If the whole inauguration smells like marijuana, it’s because they’re not talking about it,” he told ThinkProgress. “But we have to talk about it. This is about medicine. It’s about civil rights.”