Eric Holder's Prison Break

The attorney general's belated but welcome criticism of mass incarceration and mandatory minimums

Two years ago, while researching a story about drug policy reformers' disenchantment with Barack Obama, I interviewed Eric Sterling, who as a lawyer for the House Judiciary Committee in the 1980s had a hand in creating the mandatory minimum sentences he would later decry as an activist. Sterling was aghast at the penny-ante crack cases that federal prosecutors across the country were pursuing, sending overwhelmingly black defendants to prison for years over mixtures of cocaine and baking soda weighing less than an ounce.

Aside from the injustice of such harsh penalties, Sterling said, "this is a scandalous waste of federal resources." Evidently the attorney general of the United States agrees, although it took him almost five years to say so. Better late than never.

"Federal prosecutors cannot-and should not-bring every case or charge every defendant who stands accused of violating federal law," Eric Holder declared in an August 12 speech to the American Bar Association. As part of a "Smart on Crime" initiative, he said, U.S. attorneys will "develop specific, locally tailored guidelines consistent with our national priorities-for determining when federal charges should be filed."

Those "national priorities" include "focus[ing] on the most serious cases that implicate clear, substantial federal interests." Presumably that means the Justice Department will stop dragging young black men into federal court for a few rocks of crack.

Maybe not. In addition to telling the U.S. attorneys who nominally work for him that they should not prosecute nonviolent, low-level drug offenders, Holder told them what to do when they prosecute nonviolent, low-level drug offenders. These two instructions seem somewhat contradictory, although perhaps it is best to think of them as Plan A and Plan B.

Plan B involves omitting drug amounts from charges against low-priority defendants. Since mandatory minimums are triggered by drug weight, this maneuver could substantially reduce some prison terms.

It is not clear exactly who will be eligible for such prosecutorial mercy, or to what extent it will go beyond the existing "safety valve" for minor drug offenders. One of Holder's requirements is "no ties to large-scale organizations," a test that any drug dealer who does not produce his own supply may have trouble meeting. Another criterion is no "significant criminal history," which could disqualify defendants based on minor transgressions such as marijuana possession or disorderly conduct.

"His actual proposals are thin and inadequate to meet the problem," says Eric Sterling. He worries that Holder's initiative is little more than an "attempt to put an attractive ribbon on his career."

However many defendants benefit from Holder's new policy, there is no guarantee it will continue in the next administration, which is one reason congressional action is important. Holder recommended statutory reforms with bipartisan backing that reflects a growing sense of regret about the tough-on-crime binge of the '80s, which expanded the U.S. prison population nearly ninefold and made us the world leader in per capita incarceration.

The real significance of Holder's initiative may lie in its ratification of that regret. "Too many Americans go to too many prisons for far too long, and for no truly good law enforcement reason," he said. "Widespread incarceration…is both ineffective and unsustainable."

As Holder acknowledged, this conclusion has "attracted overwhelming, bipartisan support in 'red states' as well as 'blue states,'" leading to sentencing reform in surprising places such as Texas. Conservatives as well as progressives have concluded that mindlessly severe penalties are neither fair nor prudent.

The transideological nature of this movement was illustrated by the headline of a press release that longtime conservative activist Richard Viguerie issued after Holder's speech: "Viguerie Welcomes Holder and Obama's Belated Embrace of Criminal Justice Reform."

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  • The Late P Brooks||

    "Federal prosecutors cannot-and should not-bring every case or charge every defendant who stands accused of violating federal law,"

    Just the ones who hold politically deviant views.

  • sarcasmic||

    Exactly. Prosecute based upon who they are and who they know, not based upon what they actually did. It's time for Lady Justice to remove the blindfold.

  • Almanian!||

    SARCASMIC, WE SHOULD CELEBRATE ANY MOVE BY THE ADMINISTRATION TO REDUCE PROSECUTION BECAUSE MY BUTT HURTS!! OR DO YOU JUST CRITICIZE ANYTHING DONE BY THE OBAMA ADMINISTRATION?!

    /old thread reset

  • Ketogenic Paleo||

    Good thing Eric Holder isn't in charge of managing sand in the Mojave desert. Even his attempts at fixing things fail.

  • CatoTheElder||

    "... prosecutors cannot -- and should not -- ..."

    Just about everybody is guilty of one felony or another, and most active adults are guilty of one or more felonies every day.

    This means that prosecutors face an impossible workload, and prisons cannot be built fast enough to house all the lawbreakers.

    Everybody agrees that Congress is useless when it comes to eliminating laws and the justice must be fairly served. Therefore, the only solution is to turn the entirety of America into a giant prison with continuous surveillance, forfeiture of basic liberties, severe constraints on freedom of movement, frequent searches, unconstrained enforcement of rules, etc.

    Either that, or acknowledge that there are too damn many laws.

  • Ketogenic Paleo||

    You're already describing certain parts of America. If this goes on we'll see people fleeing to Canada to dodge the Police State. Why not? At this point the average Canadian/anglophone non-American probably cares just as much as the average American about what the Founding Fathers stood for.

  • Jordan||

    Federal prosecutors cannot-and should not-bring every case or charge every defendant who stands accused of violating federal law

    "But we'll damn sure try to."

  • Hugh Akston||

    It is the prerogative and the privilege of the Executive branch to decide which laws to follow and which to ignore.

  • mtrueman||

    "It is the prerogative and the privilege of the Executive branch to decide which laws to follow and which to ignore."

    That's actually the choice of every citizen. We are responsible for our own actions. Isn't that the core of libertarian philosophy?

  • Eduard van Haalen||

    I love his admission that not all violations of federal law "implicate clear, substantial federal interests," plus his acknowledgement that mandatory minimums are excessive.

    Thus he admits the laws are bad - so when is he going to ask Congress to get rid of some of these laws and modify others?

    Apart from Rand Paul and some others, I doubt Congresscritters are particularly enthusiastic about taking up the issue. They're happy to pass bad laws and then hope the executive will mitigate the bad effects by ignoring the law. So out of one side of their mouths they can talk about being tough on crime, and out of the other side of their mouths they can "deplore the excesses" and hope people like Holder will clean up the messes they made.

    And as for Eric Sterling - how come people like him seem to have more influence when it comes to making bad laws than when it comes to getting rid of said laws?

  • Eduard van Haalen||

    I suspect, like rehiring "non-essential" federal workers, the establishment isn't going to consider the implications of admitting that many federal laws fail to "implicate clear, substantial federal interests." If we can do without some of these workers, why not abolish their jobs? If federal laws fail to implicate clear, substantial federal interests, why not repeal them?

  • sarcasmic||

    It's like the blue wall of silence. Cops don't speak out when one of their own steps over the line because the one who speaks out might be the nest to step over the line. So they all keep their mouths shut.

    Legislators don't vote to repeal a bill from someone else because the next bill that comes up for repeal might be theirs. So no bills are repealed.

  • Almanian!||

    We can't repeal ANY laws because they're all absolutely necessary to promote domestic tranquility.

    We can't have anarchy! And repealing ANY law = anarchy.

  • mtrueman||

    "so when is he going to ask Congress to get rid of some of these laws and modify others?"

    Off hand, I'd say when he has some incentive to do so. Same goes for the legislators. Why should they be different from anyone else?

  • AlmightyJB||

    Before we can stop sending everyone to prison we have to make the outside world like a prison for the children.

  • The Late P Brooks||

    acknowledge that there are too damn many laws.

    There has to be some other alternative. Why do you want to repeal the laws against murder and over-the-counter laudanum?

  • mtrueman||

    "There has to be some other alternative."

    Why not support those who are resisting from within the system? There were hunger strikes held by prisoners who are against this prison regime. They have as yet not received a single word of encouragement in these pages. A surprising omission in a self styled anti-authoritarian blog.

  • Oldgeezer||

    Without any constructive implications or conclusions of law by me, and supported SOLELY by the Congressional enacted statutes within the bifurcated and cryptic statutes of the Controlled Substance Act of 1970, "any person" at random or targeted by the DEA NOT "VOLUNTARILY" registered for federal jurisdiction to be federally regulated in the closed commercial system of controlled substances is STATUTORILY EXEMPT from the ambit of federal authority to enforce a "violation of Title 21, United States Code, Section 841(a)(1)" and it is there for anybody to see with the naked eye!

  • CatherineJLin||

    just as Carol responded I didn't know that people can make $6819 in 1 month on the computer. read this
    http://WWW.JOBS72.COM

  • Nobamunism||

    I am currently in favor of abandoning the war on drugs in exchange for stepping up the war on walking guns across the Mexican border guns through straw buyers to be used against Border Patrol Agents.

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