In a memo circulated in May, Attorney General Jeff Sessions directed federal prosecutors to seek the maximum penalty possible in every case. He didn’t single out any particular crimes for harsh sentencing, indicating that all offenses—including simple drug possession—should be punished in the harshest allowable manner. Sessions later defended the decision in a Washington Post opinion piece, arguing that a decline in drug prosecutions under the Obama administration had led to an uptick in violent crime.
Backlash to Sessions’ announcement was swift. Leaders on both sides of the aisle slammed his decision to revoke discretion in drug sentencing. Thirty current and former prosecutors responded with a scathing open letter expressing deep concern about the new directive. “Instead of providing people who commit low-level drug offenses or who are struggling with mental illness with treatment, support and rehabilitation programs, the policy will subject them to decades of incarceration,” they wrote. “In essence, the Attorney General has reinvigorated the failed ‘war on drugs.’ ”
The truth is that the war on drugs never died. Someone is arrested for drug possession every 25 seconds in the U.S. A black person is two-and-a-half times more likely than a white person to be arrested for carrying drugs. This disparity persists in major cities that have committed to marijuana decriminalization or outright legalization, including New York City and Washington, D.C. Sessions argues that such arrests are necessary to curb drug trafficking, but most possession arrests involve people who are using drugs, not selling them.
These arrests wouldn’t occur if prosecutors at every level weren’t prioritizing drug cases. Some district attorneys have promised to pivot away from the tough-on-crime posturing that characterized drug enforcement in the 1990s and swelled prison populations. But those who pledge reform are the exception, not the rule. District attorneys consistently support mandatory minimum sentencing for drug crimes. The National District Attorneys Association, which acts on behalf of roughly 2,500 local and state prosecutors, vowed to follow Sessions’ order. The National Association of Assistant United States Attorneys also backed the attorney general’s decision and has actively lobbied for harsher sentencing.
The ongoing war on drugs is driven by prosecutors like Leon Cannizzaro, the district attorney in Orleans Parish, Louisiana. The region has one of the highest incarceration rates in the country and treats drug possession cases as felonies. (Mandatory minimum sentences in Louisiana will soon be reduced for people carrying up to 2 grams of certain drugs.) Even though Cannizzaro purports to be a criminal justice reformer, he aggressively enforces the state’s tough habitual-offender law, which puts people with four felony convictions behind bars for 20 years or more regardless of the offenses. Many prisoners meet this fate because of drug possession. Cannizzaro fought tooth and nail to imprison Bernard Noble for 13 years after he was found carrying the equivalent of two joints of pot, going so far as to appeal a five-year sentence that two judges had approved. He also secured a life sentence for a man who stole $15 after previously being convicted of drug possession and distribution—a decision deemed “unconscionable” on appeal.
Some state and district attorneys remain hellbent on treating marijuana users as criminals. In Maricopa County, Arizona, home of a notoriously overcrowded jail, District Attorney Bill Montgomery is battling medical cannabis use. He once threatened to prosecute a family that had been using medically prescribed marijuana to treat a 5-year-old with chronic seizures. Another time, he told a veteran treating back pain with marijuana: “I have no respect for someone who would try to claim that you served this country and took an oath to uphold the Constitution and defend against all enemies foreign and domestic, because you’re an enemy.” When Montgomery isn’t prosecuting recreational marijuana users for possession, he's making money off them. In lieu of charging first-time pot offenders with felonies, he funnels them into a drug treatment program from which his office has made a profit of $15 million.
Drug prohibition has been reinvigorated by prosecutors and lawmakers who are criminalizing addicts swept up in the country’s growing opioid crisis. Opioid-related deaths rose 246 percent between 2000 and 2015, and drug overdoses now cause more accidental deaths than car crashes. As the number of people overdosing on opioids like fentanyl, oxycodone, and heroin skyrockets, the health community largely views drug treatment as the best way to tackle the problem.
Nevertheless, jails and prisons are teeming with people punished for using opioids. As a result, people are dying from withdrawal behind bars after being refused the medication-assisted therapies and opioids they’ve been prescribed to treat their chronic diseases. Moreover, the possibility that users will overdose increases when they are released. These deaths and overdoses could be prevented if prosecutors, who have wide discretion to select cases, didn’t charge addicts en masse. Shifting focus to drug treatment also has the potential to save billions of dollars currently spent on opioid users’ imprisonment. Instead, some state and local prosecutors have ramped up their war against opioids by charging drug dealers with first-degree murder and manslaughter for overdose deaths. Republican and Democratic U.S. senators are also considering legislation to impose draconian penalties for selling synthetic opioids.
Under the Obama administration, federal prosecutors began to de-prioritize mandatory minimum sentences for drug offenses, but marijuana is the only drug for which reform has progressed at the state and local levels. Eight states have legalized marijuana in recent years. Some district attorneys, such as Kim Ogg and Mark Gonzalez in Texas, have also established diversion programs for people caught with small amounts of marijuana in states where its use is still illegal. These programs allow offenders to take drug treatment classes in lieu of getting locked up.
Nevertheless, many district and state attorneys still believe that drugs cause crime, a correlation that ignores research on the relationship between drugs and violence. Ultimately, the attorney general’s directive matters less than the actions of thousands of state and local prosecutors. These men and women make the charging decisions that keep the war on drugs alive. It will be up to them to end it once and for all.