Threat to criminal drug law changes

In the swirl of the extraordinary drama that is present-day Washington, an important domestic policy issue looks like it is getting short thrift — reforming national criminal drug laws. Our elected officials seem to be more concerned with making political points than in actually doing something to joint an emerging change in approach to drugs and addiction.

There are two key events in particular not boding well for the future of rational criminal law approach to drugs and addiction — the appointment of Jeff Sessions as attorney general and the pending abolition of the Affordable Care Act (ACA) or ObamaCare.

When it comes to criminal sentencing laws, Senator Sessions is a political dinosaur. He supports the use of draconian guidelines, which rob both prosecutors and judges of sentencing discretion with our federal drug laws. There has been a bipartisan movement to relax these guidelines, including giving options to avoid minimum mandatory sentencing. This philosophy shift has been particularly important to eliminate the discriminatory impact these guidelines have had on minorities, such as treating crack cocaine drug weight more seriously than cocaine powder (where defendants tend to be “whiter”).

Standing in the breach against this groundswell has been Senator Sessions. He believes that we should make our criminal laws as stiff as possible to try and deter crime. Thanks, in part, to his opposition, a broader liberalization proposal failed last year. As attorney general, in running his department, he will be able to instruct various United States attorneys to always oppose downward sentencing decisions of judges and to never offer such incentives to procure guilty pleas. He can try to bleed out what discretion had been worked into a tight system.

As attorney general, Senator Sessions will also lord over the Drug Enforcement Agency (DEA). This agency has the power to directly and indirectly invalidate states’ attempts to decriminalize marijuana. He can order U.S. attorneys to prosecute marijuana cases in jurisdictions that states refuse to do so, which would have only a small footprint. The “large footprint” would be if the DEA raid legally sanctioned marijuana farms, distributers and stores in places like Colorado and California for federal prosecution, even with the accused having a valid state license to act as they have.

He has this enormous power because the DEA has final authority as to the legality of any drug. This is true even though a majority of states (28) permit medical marijuana and eight of them (plus the District of Columbia) have made it legal to possess marijuana. In other words, Jeff Sessions can deepen the divisions in our country, depending on how he views his role with respect to sentencing guidelines and marijuana.

The ACA is an unlikely agent when it comes to drugs and crime. Included, in the labyrinth that is the ACA, are a number of progressive features popular with the public. One of these requires insurance policies to cover drug prevention treatment methods, such as counseling and drug replacement therapy. Counseling aside, medicines like methadone and Suboxone, to combat opioid (heroin) addiction, and naltrexone and Zofran, to combat alcohol addiction, are life-saving prescriptions to ward off the ravages of addiction. Those on the fringes of society cannot readily afford health insurance without subsidization and/or expanded access to Medicaid, as the ACA requires.

There are some 23 million Americans suffering from some form of dependency. Maybe as much as 15 percent of this subpopulation now has access to care thanks to the ACA. Repeal it and poof, a lifeline to normality is snapped. Our brothers and sisters, parents and children, would be left unprotected from the scourge of addiction.

At the state level, governors and legislatures are responding to the needs of their constituents. They listen, unlike the folks we send to Washington. Go around the country and you will see prisons closing and drug addiction centers opening. All of this energy in laboratories of state after state. These politicians, right and left, “get it” that throwing salvageable souls aside in prison cells is not smart policy.

Returning to an “old” mindset of arrest and imprison first is stupid. Less imprisonment means that we will be paying less of our tax money to warehouse potentially productive contributors to society. This state-fueled strategy of only using imprisonment as a fallback option could be upset by an Attorney General Jeff Sessions. He also can upset the reversal of our silly obsession with marijuana taking away needed medicinals from cancer, AIDS and multiple sclerosis patients (amongst others). Finally, blindly eliminating the ACA will end our newfound popularity of treating addiction as a disease.

Let’s hope some common sense Americanism seeps into D.C. water coolers. Resistance to change and new idea is not always a positive. A federal government opposing the energy states have harnessed to dismantle draconian drug laws would be a positive development.

Warner Robins attorney Jim Rockefeller is the former chief assistant district attorney for Houston County and a former assistant state attorney in Miami. Owner of Rockefeller Law Center, he has been in private practice since 2000. Email your comments or confidential legal questions to ajr@rockefellerlawcenter.com.

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