Why Jeff Sessions’ Successor Could Be Worse for Drug Reform

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Someday—perhaps someday very soon, judging by how often his boss is harassing him into obstructing justice, online—Jefferson Beauregard Sessions III will no longer be attorney general of the United States.

When Sessions goes, the U.S. will be different: An authoritarian embodiment of the Republicans’ Southern Strategy, who has no compunction against lying under oath about meetings with foreign agents trying to influence the democratic process, will no longer run the U.S. Justice Department.

That will be good!

Less good is the fact that Sessions’s replacement, whomever he (and it will almost certainly be a he) turns out to be—Rudy Giuliani, Ted Cruz, Hulk Hogan—may wield broad new powers to unilaterally ramp up the drug war, outlawing new substances without input from Congress or the public.

And one of the leaders in Washington colluding with the law-and-order set to empower future attorneys general in this way and make America a carceral state is a leading Democrat.

The federal government’s drug war bible was and is the Controlled Substances Act, the Nixon-era law that led to the creation of the DEA and granted the Justice Department broad powers to root out a list of substances deemed dangerous and bad. New drugs can be added to the CSA—or removed, or downgraded, if science or reason were ever to trump expediency and politics in drug-control policy—in one of just a few ways.

Congress can make a move to schedule or de-schedule—it’s always Congress’s job to reschedule marijuana—or the DEA can, after a public comment period that involves input and data from the Food and Drug Administration.

In both situations, pushes for tighter or more punitive drug laws can be abandoned after a public outcry. This is what happened last year, when the DEA gave up trying to schedule kratom, an herb that may be useful in treating pain and depression.

But sometimes drugs move more quickly that bureaucrats.

In the case of synthetic cannabis and opiates, manufacturers are able to evade drug-control laws by making slight tweaks to existing banned formulas. The end result on the user is the same—intoxication, and, quite often, terrible side effects far worse than the real thing—but the substance is legal.

It’s a loophole that needs closing. But Congress wants to close it by granting the attorney general broad new powers to outlaw new drugs as he or she sees fit, without any external input or oversight.

Under the Stop the Importation and Trafficking of Synthetic Analogues Act (known by the acronym “SISTA” for short; really, not our choice), a brand-new category in the CSA, called “Schedule A,” would be created—the first time since its creation that the CSA would be used in this way, as the Washington Post reported in June. Not only could the attorney general declare a new drug verboten, he or she could also decide the penalties for use or possession of the drug, including stiff mandatory minimums.

Predictably, drug-policy reform advocates are sounding the alarm.

“I think having someone who is so extreme in his views at the Department of Justice is a green light for people in other parts of the government to take us in the wrong direction,” said Maria McFarland Sánchez-Moreno, the Drug Policy Alliance’s executive director, in an interview with AlterNet. “This is a major challenge for DPA and the drug reform movement in general, and we will be focusing on that right off the bat.”

“This is a giant step backwards,” the DPA’s Michael Collins told the Post, “and really it’s doing the bidding of Jeff Sessions as he tries to escalate the War on Drugs.”

The same Congress that’s content with stripping healthcare from tens of millions of Americans is also OK with giving the attorney general unprecedented power to ramp up the drug war.

Earlier this month, the House version of SISTA cleared that body’s Judiciary Committee. There’s another version in the Senate, which is a stone-cold lock to clear the Senate Judiciary Committee because one of its co-sponsors, Iowa Sen. Chuck Grassley, is that committee’s chairman. The other sponsor is the Judiciary Committee’s ranking Democrat, San Francisco’s own Sen. Dianne Feinstein.

Feinstein is a lifelong avowed foe of marijuana legalization and nearly every other move toward less punitive drug laws. Along with Grassley, Feinstein is peddling a myth that drug dealers are packaging methamphetamine to look like candy in order to appeal to children.

Defenders of SISTA will point at the terrible toll wreaked by synthetic opiates, like fentanyl and carfentanil and their sudden appearance in Midwestern states, already suffering record-breaking overdose deaths, saw opiate-related deaths skyrocket even further. 

But as the DEA has admitted, drugs already banned by the CSA are flooding into the country via the dark web and the U.S. mails. Giving Jeff Sessions—or any one of his successors—broad authority to outlaw new drugs and set new penalties is guaranteed to reverse recent advances on saner drug policy. Which is probably the idea.

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