To: Interested Parties
From: Elliot Mincberg, Senior Fellow, People For the American Way
Date: October 17, 2017
Re: Justice Department Moving in a Dangerous Direction Before First Oversight Hearing
On Wednesday Attorney General Jeff Sessions is scheduled to appear before the Senate Judiciary Committee for a Department of Justice (DOJ) oversight hearing—his first as attorney general. The committee will have an opportunity to ask tough questions and get more information about the direction that Sessions has taken DOJ’s work on a number of core issues, including in six areas where the Department’s influence is enormous and consequential: (1) voting rights; (2) hate crimes; (3) federal criminal law and mass incarceration; (4) police reform; (5) immigration; and (6) civil rights enforcement.
In these areas, the Department of Justice is supposed to be ensuring fair legal treatment for all. But DOJ actions since Sessions became attorney general show that he is working to remake the Department and reverse course on many of its core responsibilities. In the document below, we have outlined the type of deeply troubling DOJ actions that senators should ask about in this week’s oversight hearing.
The attorney general and DOJ have a crucial responsibility for enforcing federal laws like the Voting Rights Act that ban discrimination in voting based on race, language, minority status, age, and disability and that promote more accessible voter registration and voting for all. But the Trump-Sessions DOJ has already taken actions that undermine voting rights.
Perhaps most notably, the Justice Department under Sessions has not only abandoned but actually joined the other side in two important voting rights cases. Less than a month after Sessions started as attorney general, the DOJ switched sides in an ongoing Texas voter ID case and abandoned its claim that the law was intended to discriminate. In August, the DOJ also switched sides in a case about Ohio purging voters from the registration rolls if they don’t regularly vote, with the Department now supporting such purges as the Supreme Court considers the case.
Additionally, the Trump-Sessions DOJ budget proposal conspicuously omitted a promise made by President Obama in his final budget request to “focus on detecting and challenging practices that violate Section 2 of the Voting Rights Act,” which bans practices that have a discriminatory effect on voters. The Department of Justice should be working to ensure that every American is able to cast a ballot that counts—but so far, under Sessions, DOJ has been moving in the opposite direction.
Congress has given DOJ specific responsibility for prosecuting hate crimes, which include violence and threats based on a person’s race, color, national origin, disability, gender, gender identity, or sexual orientation. Given the post-election surge in hate crimes against Muslims, immigrants, Jews, and people of color, this work takes on even greater importance.
After 13 senators called on the Trump administration to establish a task force to address the hate crimes situation, DOJ did announce in April that a subcommittee of a broader task force on crime prevention would seek to address the issue, though senators and advocates have expressed skepticism about how effective the task force will be.
In addition, this month Sessions sent a DOJ hate crimes lawyer to Iowa to assist in prosecuting a man charged with murdering a 16-year-old African American student who identified as transgender and gender-fluid. While the Trump-Sessions DOJ is pursuing justice in this particular case—as it should be—it is essential to view this move within the larger context of the Department’s devastating actions to harm the rights and lives of LGBTQ people and people of color, as outlined in the rest of this document.
Federal Criminal Law and Mass Incarceration
Since there are well over 5,000 federal criminal laws DOJ is charged with enforcing, a key question for any attorney general is how to prioritize which laws to enforce, and against whom. Unfortunately the Trump-Sessions DOJ has already made clear it is seeking to return to a discredited approach of mass prosecution and mass incarceration, with particularly disastrous consequences for minority communities.
In May, Sessions sent a memo instructing all federal prosecutors to pursue the harshest possible charges and sentences against all crime suspects, including non-violent drug offenders. DOJ’s proposed budget would also add 300 more federal prosecutors to work on immigration and criminal enforcement matters, who would all be subject to the directive to pursue harsh charges and sentences. Sessions even personally wrote to Congress seeking an end to a bipartisan appropriations rider that prevents DOJ from prosecuting people for using medical marijuana that is legal under state law.
Sessions has also announced that DOJ will go back to using privately-run prisons, despite clear evidence of serious safety problems. And in July, Sessions rolled back civil forfeiture reforms, making it easier for police to seize the assets of those they suspect of a crime, even without pressing charges.
The need to reform our federal criminal justice system and end the cruel and ineffective mass prosecution/mass incarceration approach has been recognized by leaders from all political backgrounds. But so far the Trump-Sessions DOJ is ignoring this reality and forging ahead with a disproven approach—without regard for its devastating impact on many communities of color.
The Justice Department has previously played a critical role in investigating and addressing abusive police practices, as well as operating programs that have encouraged more effective community-oriented policing. But Sessions has wasted no time in dismantling important reform efforts.
Sessions announced a drastic policy shift in March that could “roll back decades of police reform,” sending a memo directing a review of all DOJ activities in this area, including plans to investigate existing “consent decrees” with local police that mandate an end to abusive practices. Sessions tried to delay the signing of one such comprehensive plan to reform police practices in Baltimore, despite the city’s own objections to the delay.
Attorney General Jeff Sessions successfully pushed for a policy change in August allowing surplus military equipment to be transferred to police departments, over the objections of civil rights advocates who made clear that battlefield equipment does not belong in our neighborhoods and poses an increased threat for communities of color. And in September, DOJ announced it is eliminating a reform effort within the DOJ’s Office of Community Oriented Policing Services (COPS) designed to “investigate and publicize the shortcomings of police departments.”
Rather than taking on improper and abusive police actions, as the Justice Department should be doing, the Trump-Sessions DOJ appears committed to rolling back any progress previously made on this issue.
The attorney general and DOJ have important responsibilities concerning our nation’s immigration laws, including appointing administrative immigration judges who decide most deportation cases, setting criteria for asylum, and determining enforcement priorities. Unfortunately, the Trump-Sessions DOJ is already taking aggressive action to attack immigrants and undermine their rights.
In April, Sessions directed that all federal prosecutors’ offices devote significant new effort to prosecuting any and all immigration-related offenses, including non-violent offenses. Sessions dispatched 25 immigration judges to work 12-hour days to reduce the backlog of deportation cases. He joined with DHS in backing plans to arrest undocumented immigrants at courthouses when they appear for proceedings unrelated to their immigration status. Despite cuts elsewhere, the DOJ budget proposed spending $80 million, an increase of 19 percent, to ramp up immigration enforcement. And last week media outlets reported that the Justice Department plans to implement quotas for federal immigration judges deciding “life-or-death deportation cases.”
The Trump-Sessions DOJ has also taken destructive action against sanctuary cities. In April, Sessions demanded that nine cities which have taken steps to protect immigrant communities agree to cooperate fully with aggressive federal immigration actions—or face the loss of federal funding. The DOJ budget also proposes dramatic changes to federal law aimed at cracking down on sanctuary cities.
In September, Sessions sent a letter advising the Department of Homeland Security to end the DACA program that defers deportation for DREAMers, and was the Trump administration member chosen to announce that the program was indeed being ended.
Civil Rights Enforcement
The Justice Department is supposed to play an important role in preventing and combating discrimination in housing, employment, education, and other areas based on race, gender, religion, and national origin. Through its Civil Rights Division, DOJ has a proud history of enforcing civil rights laws.
But the Trump-Sessions DOJ is already threatening civil rights enforcement. One of Sessions’ first actions as attorney general was to revoke guidance providing protection for transgender students in schools. DOJ also dropped a lawsuit against the infamous North Carolina bathroom ban. This summer the Justice Department filed a friend-of-the-court brief arguing that under federal law, it is not illegal to fire someone because they are gay. And in September DOJ issued another friend-of-the-court brief, this one in support of a cake shop’s supposed “right” to discriminate against a same-sex couple attempting to purchase a cake for their wedding.
In June, DOJ switched sides in an important workers’ rights Supreme Court case, abandoning its position that a contract forcing workers to give up their right to bring a class action lawsuit against their employer violates federal labor law, and instead supporting big business claims to the contrary. DOJ also backed out of its appeal in a disability rights lawsuit about an employee who was physically unable to resume her old job after surgery.
In addition, the Trump budget lays out a blueprint for severely cutting back on civil rights enforcement, from eliminating at least 121 positions in the Civil Rights Division to cutting $2 million from funds to help implement the Violence Against Women Act.
In all of the six areas outlined above, the Trump-Sessions Department of Justice is taking its work in a dangerous direction—especially for some of our country’s most marginalized communities. The Senate Judiciary Committee should use its oversight hearing this week to question Attorney General Sessions about these developments and push for answers about this troubling approach to “justice” at the Justice Department.
Please note: this document is based on a June 2017 edit memo by the same author.