Critics bemoaning Session’s recent guidance to prosecutors are missing the point: It’s time for Congress to do its job and overhaul our approach to federal drug policy. Many states have proven they’re up to the task, and conservative lawmakers should take the opportunity to limit the criminal reach of the federal government.

In America, we’ve been gradually rethinking our posture towards illegal drugs for almost two decades, and red states are leading the way.

Faced with a multi-billion dollar prison construction bill in 2007, the Texas legislature decided to spend $241 million on programs designed to reduce incarceration of and provide treatment for nonviolent drug offenders. From 2007 to 2015, the incarceration rate in Texas fell by 17 percent as the crime rate dropped by 27 percent.

A number of red states such as Georgia, South Carolina and even Alabama have followed suit and undertaken efforts to be smarter about drug crimes in particular. In case you missed it, those states aren’t following the lead of California and Colorado with policies such as legalizing marijuana.

The federal government can’t seem to get with the program.

While it’s true that Sessions successfully opposed bipartisan legislation last year that would have relaxed mandatory minimum sentences and attempted to reduce recidivism, he isn’t a legislator anymore. He’s now a law enforcer. “It is of the utmost importance to enforce the law fairly and consistently,” writes Sessions in the recent directive to prosecutors.

But that’s just the point.

The Attorney General’s office should be in the enforcement business, not policymaking. That ought to be the case whether we like the Attorney General’s approach to enforcement or not. The consequences of high level “prosecutorial discretion” are often too substantial to be left to the executive branch alone.

Almost half (46.3%) of federal inmates are incarcerated for drug-related offenses. Let’s put that in context. The federal government holds almost 82,000 inmates for drug offenses and 66 for national security offenses. You read that correctly–66 inmates currently put away for national security offenses. If incarceration is a metric for prosecution prioritization, we have some serious focus issues.

That’s also the reason drug policy should largely be left to the states. I was a federalist when Barack Obama was president; I still am. Powers not explicitly reserved for the federal government in the Constitution should be left to the states. Conservatives, in particular, hate an expansive reading of the Constitution’s Commerce Clause to justify Washington’s reach. We ought to be consistent when it comes to federal drug crimes.

In that sense, I hope Sessions means what he says about consistent enforcement.

If he’s going to enforce federal law, he has some easy targets in the almost thirty states that have legalized marijuana in some way. Enforcing existing federal law sets up a confrontation between Washington and a majority of the states. The explosive collision might just be enough to motivate Congress.

On the other hand, applying a different prosecutorial posture on a state-by-state basis is evidence of the same “selective” law enforcement Sessions so roundly criticized in the Obama administration.

A Federalist drug policy doesn’t mean legalization. It simply gives states the flexibility to deal with drug issues in a manner that solves the problems they’re facing. It also affords the rest of the nation the benefit of seeing results from a number of different approaches to drug policy.

Our problem isn’t Attorney General Sessions; it’s a Congress that doesn’t believe we can do better than a one-size-fits-all drug policy from Washington. The irony is that we already are.

Image by Brad McPherson

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