One of the central planks of President Trump's plan to Make America Great Again has always been his not-at-all-disguised plan to lock up more black and brown people. From the moment he announced his campaign by calling Mexicans rapists who bring drugs and crime to this country to his ongoing expansion of ICE detentions, he has been as clear as possible about MAGA's racist underpinnings.
Today, Attorney General Jeff Sessions moved even further in this direction by announcing a change in federal marijuana policy that, if vigorously implemented, will result in even more people of color in federal prison.
Here's what's happening: As most people know, legalization of marijuana for recreational use is supported by a wide majority of Americans, a number that seems to be growing every day. Currently, eight states, including now the most populous state in the country California, and the District of Columbia have legalized recreational pot. The majority of states make pot legal for medicinal use in some form. The problem, though, is that marijuana – for both recreational and medicinal use – is still illegal under federal law.
Figuring out what that means in the states where marijuana is still illegal in all forms is easy – it's against the law to use it under both state and federal law, so people are supposed to comply with both laws. But what about in those states where it's legal, either for recreational or medicinal purposes? How are people in those states supposed to comply with the state law, which allows them to use recreational or medicinal pot (or both), and the federal law, which makes all pot illegal?
That's actually not a legally difficult question. As a general matter, federal law trumps state law, so if a state allows something but the federal government doesn't, it's still illegal. The Supreme Court approved this situation with respect to pot in 2005. So, in the states that have legalized pot, someone using it in accordance with state law isn't going to be arrested and thrown in jail by state law enforcement, but they are at risk of having the feds come after them.
To address this situation, under the Obama Administration, the Department of Justice released what is now called the "Cole Memo." That memo, drafted by then-Deputy Attorney General James Cole, was released in 2013 after Colorado and Washington had legalized pot. The memo said that federal prosecutors were not going to go after marijuana in states where pot was legal unless a prosecution was related to other, bigger federal interests, such as crimes affecting children, organized crime, interstate transport, federal property, or money laundering. As legal marijuana has expanded, the Cole Memo protected more and more people from federal prosecution.
Today, AG Sessions rescinded the memo. As a lifelong crusader against pot, Sessions' actions aren't too surprising. Sessions did not, though, announce a new federal policy to prosecute recreational pot users. Instead, his actions today will leave that to the discretion of local United States Attorneys. They will now be the ones to decide whether to go after people for growing, selling, and using pot in violation of federal law.
Will that mean a sudden influx of people being prosecuted by the feds for marijuana crimes? Probably not. After all, the federal government has a ton of other law enforcement priorities, and marijuana has never been highest on that list. Plus, local U.S. Attorneys are, at heart, local politicians operating in states where pot has been legalized. If they have ambition and want any future in local or state politics, they are not going to be too eager to go against what the voters of their state have so recently changed.
However, if they do decide to go after people for marijuana crimes, we know that the victims are going to be disproportionately black and brown. Racial disparities in marijuana prosecutions have been one of the driving forces behind the incarceration crisis among people of color in this country.
With his announcement today, Jeff Sessions has given the go ahead for local federal prosecutors to further penalize people of color. And in doing so, he is furthering President Trump's racist vision of what it takes to Make America Great Again.