Drug War

Eric Holder: "widespread incarceration…is both ineffective and unsustainable"

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You're welcome, America. |||

In news that is no less stunning for being telegraphed, the attorney general of the United States today is declaring America's drug war-led over-incarceration a moral failure, and announcing new federal rules to deliberately evade mandatory minimum laws for drug offenses. Here's The New York Times:

In a major shift in criminal justice policy, the Obama administration will move on Monday to ease overcrowding in federal prisons by ordering prosecutors to omit listing quantities of illegal substances in indictments for low-level drug cases, sidestepping federal laws that impose strict mandatory minimum sentences for drug-related offenses.  […]

Saying that "too many Americans go to too many prisons for far too long and for no good law enforcement reason," Mr. Holder is planning to justify his policy push in both moral and economic terms.

"Although incarceration has a role to play in our justice system, widespread incarceration at the federal, state and local levels is both ineffective and unsustainable," Mr. Holder's speech says. "It imposes a significant economic burden — totaling $80 billion in 2010 alone — and it comes with human and moral costs that are impossible to calculate."

Mr. Holder will also introduce a related set of Justice Department policies that would leave more crimes to state courts to handle, increase the use of drug-treatment programs as alternatives to incarceration, and expand a program of "compassionate release" for "elderly inmates who did not commit violent crimes and have served significant portions of their sentences." […]

Under a policy memorandum being sent to all United States attorney offices on Monday, according to an administration official, prosecutors will be told that they may not write the specific quantity of drugs when drafting indictments for drug defendants who meet the following four criteria: their conduct did not involve violence, the use of a weapon or sales to minors; they are not leaders of a criminal organization; they have no significant ties to large-scale gangs or cartels; and they have no significant criminal history.

Can you please just do this one thing right? |||

While I'm sure there are mitigating details yet to come out, and questions as to the legality and appropriateness of the executive branch taking deliberately evasive action to avoid enforcing laws (as opposed to engaging in more simple prosecutorial discretion), this has the makings of a key moment in beginning to undo the disastrous war on drugs.

As the Times story details, Holder is playing catch-up on prison reform behind more conservative groups and states, and is an effort to "bolster his image and legacy." (I made the argument in the July issue that drug reform marked President Barack Obama's "Last Gasp at a Legacy.") An important test going forward will be public opinion in the next couple of days, particularly from quarters that have historically been "tough on crime." My prediction, and fervent hope, is that there won't be much opposition at all. Then the real work of drug-war reform—including, hopefully, an announcement from Holder that the administration will no longer be raiding state-legal marijuana operations—can begin 

Reason on the drug war here.

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  1. I Want to Believe.

    But I don’t.

    1. Too little, too late. This came from on high, from Obama himself, as the one last ditch effort they could pull to soothe the throbbing anger of the populace over the NSA. There is nothing honest or wholesome about this at all. Plotical ploy, all the way through. Holder can cram his sensibilities up his ass, and wait for the day the populace revolts and teaches him and his masters the error of their ways.

  2. Three posts before 9 AM? Matt has obviously had his coffee this morning.

    I would love to be optimistic about this, but the Obama administration’s crackdown on medical marijuana – which something like 76% of Americans think should be legal – makes me doubt it will stick.

    1. Three posts before 9 AM? Matt has obviously had his coffee this morning.

      Yeah, but two of them were lazy, “I did a TV spot recently!” posts

        1. Do I get a hat-tip for pointing out your laziness? 🙂

    2. It’s true, caffeine was involved in the construction of these posts … though in fairness the TV-spot posts aren’t exactly labor intensive.

  3. Unfortunately, I quite cynically but probably quite correctly see this as an attempt to forestall reform by the Congress.

    This policy is completely voluntary by the DOJ and can be undone at any time. It can also be undone in individual cases at will. Who’s going to enforce it?

    This is pretty much EXACTLY ANALOGOUS to Obama and Holder claiming that they won’t raid medical marijuana facilities operating in accordance with state law. It’s BS that they take back when and how they see fit.

    Nothing can be trusted but a change in the law. So I hope that Leahy and Paul go forward with their legislation regardless of today’s announcement.

    1. My sentiments exactly. I remember the last time the Obama-worshiping media told us about an Eric Holder “directive” pertaining to drug enforcement…which turned out not to have been written by Holder, was not a “directive” at all, and contained so many exceptions and provisos that it served as a basis for stepped-up enforcement.

    2. Paul should call his bluff and introduce legislation to codify this.

  4. Leave it to the Obama Administration to pick the most awful way to accomplish a worthy goal. Interesting to see how this plays out, assuming it’s just not more talking points of which nothing will ever be heard again.

    1. What Fluffy said.

    2. “Leave it to the Obama Administration to pick the most awful way to accomplish a worthy goal.”

      This. Nothing about Obama granting pardons to prisoners whose sentences are excessive. No, it’s more politically viable for prosecutors to just ignore the sentencing statutes.

      And assuming for the purpose of discussion that prosecutors have the discretion to ignore, what does it say about them that they haven’t used this alleged power before? If they have this grandiose conception of their authority to ignore the law, then that affects their credibility when they say, “don’t blame me, I’m just an impartial servant of the written law.”

      And it raises the question – why should ordinary citizens comply with the law? At least they didn’t take solemn vows to obey and enforce the laws.

  5. He just noticed this? Really Eric? You’ve been a government shyster for 20 years and you just noticed that “widespread incarceration at the federal, state and local levels is both ineffective and unsustainable”.

    Really?

    1. I believe it. You don’t get to his position by noticing inconvenient truths.

      1. He noticed it before; he just couldn’t be bothered to say anything about it.

        Surely you realize that “If you see something, say something” only refers to us peasants.

  6. I am sure they will ruin this somehow, but any crack in the edifice is good news.

  7. Well now I think I might have sold my Medical Marijuana stock too early.

  8. While I’m sure there are mitigating details yet to come out, and questions as to the legality and appropriateness of the executive branch taking deliberately evasive action to avoid enforcing laws (as opposed to engaging in more simple prosecutorial discretion)

    Holder isn’t saying these people shouldn’t be punished for their evil deeds. He’s just saying the punishment shouldn’t be quite so harsh.

    1. That’s most likely the case. We don’t want to incarcerate them but we sure do want to tell them how to live their lives. Is it the goal to turn the U.S. into a giant free-range prison?

      1. Probation for everyone! For the children!

        1. We are all suspects. hahaha

      2. I think they’d like to drop the “free-range” part eventually. How dare you drive where you want!

        1. Public transit for everywhere! For the children!

        2. How dare you drive where you want!

          FIFY

    2. If he was really interested in reform he’d be recommending legislation. This way the laws remain the same, but the DoJ is free to dispense mercy as it sees fit, without the burden of any legal obligation to do so. It’s sentencing by fiat, arbitrary and subject to the whims of prosecutors. Gangsterism again, from an administration that seems rife with it.

  9. Obama spends 75% of his air time complaining that Congress is uncooperative, and 25% of his time dreaming up ways to avoid giving those in Congress who want to work with him to accomplish a worthy goal any credit, evidently. Why not support efforts to reform the law rather than sidestep it?

    1. Maybe he doesn’t want to put Dem congresscritters on the spot by asking them to vote for a “soft on drugs” law. Maybe he doesn’t want Congress to cramp his style and share credit for his awesome, compassionate reforms.

      1. That is the vibe I get. He wants to come off as the lone voice arguing for reducing sentencing for these petty crimes. He absolutely does not want anyone else sharing in the lime light. If this isn’t the case, why not try and work with congress to make real permanent changes to the law?

        1. Also, this way he has an argument for electing Dem presidents to infinity. “The Republican candidate will start enforcing those mean old mandatory minimums again, booga booga!”

          1. That’s where my mind went.

      2. It might be something more devious: an effort to split Republicans. If some Republican pols now favor drug reforms, they may be seen by many at the grass roots of the GOP (or their ledership) as doing something Democrat-ish.

    2. Exactly. Why not announce he would also like to work with Paul and Leahy in getting the mandatory minimum laws repealed, but in the mean time order prosecutors to ignore mandatory minimums in these cases?

      1. To be fair, this Admin has often used the tactic of trial balloons floated by underlings before the big cheese steps in it. It might be possible Obama is using Holder to gauge reqction to this and then work with select members of Congress. On the off chance of this, Rand and Leahy could propose publicly such a partnership.

        A very cynical take would be that Obama is intentionally trying to split the GOP by initiating such a partnership, or even trying to torpedo Rand’s chances at the 2016 nomination, having seen what happened to Christie’s GOP internals by associating with the O admin.

        1. I swear I did not see this post when I wrote my 4:08.

  10. Which Eric would make a better AG – Holder or Cartman?

      1. Sexy AND a minority. He’s got my vote.

    1. Eric Vandelay.

      1. Art’s brother.

    2. Erik the Red

    3. Eric Idle

    4. Eric the Half-a-Bee

    5. Garak.

    6. I wasn’t aware Holder and Cartman were different. Aren’t they both self serving cartoon characters doing bad things on a weekly basis?

    7. Eric Olthwaite

  11. “Mr. Holder will also introduce a related set of Justice Department policies that would leave more crimes to state courts to handle”

    Ah, so there lies the truth – shirking.

  12. There is no way. As diversions go, however, this might prove to be a good one.

  13. Eric Holder: “widespread incarceration…is both ineffective and unsustainable”

    “But I still want to criminalize everything under the sun.”

    1. Well, that leaves the threat of incarceration hanging over everyone all the time. Very effective in herding sheep.

  14. So the “mandatory” part of “mandatory minimums” applies only to the judiciary. Because it’s far better to trust discretion to prosecutors than judges.

    Weirdos.

    1. “Mandatory” only means “mandatory” when they want it to.

  15. Too little too late.Just pretty words from someone who is trying to save his ass.

    I ain’t buying it.

  16. I hear a lot of talk from the AG saying “we won’t prosecute laws we don’t like” or some such, and nothing from his boss about “we’re gonna work with Congress to repeal laws that waste everyone’s time.” That and it’s Eric Holder, who if he were to tell me the sun rose in the East this morning, I would have to confirm that with some outside source.

    1. and nothing from his boss about “we’re gonna work with Congress to repeal laws that waste everyone’s time.”

      That actually takes work. Although in reality, Obama and Holder would probably put all the work on the shoulders of the legislators.

  17. Wish someone would have decided to selectively not enforce the $160 seat belt I got over the weekend. I’ve never even heard of a highway patrolman making a u-turn to pursue a fucking seat belt violation.

    1. “$160 seat belt”…ticket

    2. Warty violates his seat belt all the time.

    3. That’s money for the town/state. The police’s primary function is to generate income for the town.

    4. Well, if you couldn’t get your seat belt hooked up while he was doing the U, you probably deserve it. First thing I do every time I see a cop.

      1. Well, if you couldn’t get your seat belt hooked up while he was doing the U, you probably deserve it. First thing I do every time I see a cop.

        I did fasten it while he did his u-turn. That trick doesn’t work here anymore. They have been “trained” to see violations in oncoming vehicles.

        1. Go to court & make the cop show up. You may be able to get him admit that at the time he stopped you you had your seat belt fastened. I would certainly ask the question. It might raise a reasonable doubt issue. I also think a reasonable doubt issue is how could he see you when you are both going at high speed in the opposite direction. I usually can’t even see the drivers!

          If you go to court you may be able to go to traffic school & not have it show up on your record.

  18. This is an obviously an unconstitutional end-run around federal law. If this were about anything except letting drug users off easy or letting illegal aliens run free, this site would be howling with rage. Either we’re a nation of laws or we’re not. This action takes us in the wrong direction. Just because it lets some of us off lighter doesn’t change the fact that the executive branch is usurping the authority of the legislative branch. (Full disclosure, I neither drink alcohol nor take any kind of illegal drugs, nor use prescription medications for any other than prescribed purposes and reasons. They just don’t do anything for me.)
    Sorry guys, your hypocrisy is showing.

    1. How many comments have you read here saying this is a good thing?

      1. Shhh! He’s got the straw man on the ropes!

        1. FTFA

          “this has the makings of a key moment in beginning to undo the disastrous war on drugs.”

      2. Didn’t say that. I said there would be outrage if this was most any other topic. For instance, if Holder said that we are letting off gun nuts too easy, so we need to ignore MAXIMUM sentencing guidelines for gun offenses. Think the response might be a bit more passionate here? UM?

    2. Who exactly are you calling a hypocrite? The general consensus seems to be that this is that this is a cynical political ploy substituting for genuine legal reform.

      1. I’m talking about selective outrage. Nobody here has expressed any visceral reaction. That’s ALL I’m saying.

        1. Bean Counter| 8.12.13 @ 9:56AM |#
          “I’m talking about selective outrage. Nobody here has expressed any visceral reaction.”

          RAH, RAH, SIS BOOM BAH!
          Is that better?

    3. Prosecutorial discretion. What is it?

    4. You don’t know the first thing about drafting an indictment or prosecuting a criminal case. You’ve obviously never heard of prosecutorial discretion or the concept of a plea agreement. Deciding how to prosecute is entirely within the discretion of the executive branch.

      1. So, sentences are determined by the prosecutor, not the judge? Again, we’re talking about ignoring federal law which is supposed to tie both prosecutors’ and judges’ hands so they can’t let drug offenders off easy. It’s a nasty and cynical law, but it IS the fucking law!

        1. You obviously don’t get that that is the fallback position. Oh, we wanted to avoid these nasty sentences, but alas, our policy was thwarted by the evil Republicans who wouldn’t change the law.

          Shit people can’t you see that coming?

    5. I’d blame the lack of all caps passionate outrage more on the feeling that ‘oh, of course this is the way the Obama administration would do this- the least straight forward and legal way possible’ than on hypocrisy.

  19. “Although incarceration has a role to play in our justice system, widespread incarceration at the federal, state and local levels is both ineffective and unsustainable,” Mr. Holder’s speech says. “It imposes a significant economic burden ? totaling $80 billion in 2010 alone ? and it comes with human and moral costs that are impossible to calculate.”

    Reading that leaves me a bit disoriented. While I wholeheartedly agree with this statement, I find myself more than a little skeptical because of the source. Hearing that come out of Holder’s mouth is surreal.

    1. I’m thinking he dipped into a little Thomas Friedman before he spat that out.

  20. expand a program of “compassionate release” for “elderly inmates who did not commit violent crimes and have served significant portions of their sentences.” […]

    Have they started planning Bernie Madoff’s “welcome home” party?

  21. I’ve never even heard of a highway patrolman making a u-turn to pursue a fucking seat belt violation.

    “We’re trying to save you from yourself. But don’t worry, this will never be a stand-alone violation, only an additional citation if you’re pulled over for some other moving violation.”

    1. “But don’t worry, this will never be a stand-alone violation, only an additional citation if you’re pulled over for some other moving violation.”

      Exactly how it was sold. Now it’s just another way to extract protection money. This jackass even gave me a pen and said “You didn’t sign your vehicle registration. You know that’s a misdemeanor?”

      1. That was because you failed to show the appropriate thankfulness that he was saving you from yourself. And just in case you were thinking of contesting the ticket. I’m sure he could have found a felony charge of some type to seal the deal.

        1. I’m sure he could have found a felony charge of some type to seal the deal.

          Nah, more like as you start to reach across to the glove compartment to put away you registration shout “Furtive gesture!” *blam, blam, blam, blam, blam* “Good shoot.”

  22. Ultimately, when the drug war finally ends, it will happen because the government sees a financial benefit for ending it. It will not be because of any sympathy for millions of people whose lives it destroyed. And when it does end, it will happen very slowly, continuing to destroy people’s lives because neither party will alienate the thousands of people who work in the drug war industry.

    The drug war is like every other kind of war. The effect it has on ordinary people is of zero consequence. Like all wars, the drug war is promoted by people who benefit from it, but don’t suffer its consequences. It’s no more moral than simply lining people up and slaughtering them so you can pick the pockets of their lifeless bodies.

  23. Under a policy memorandum being sent to all United States attorney offices on Monday, according to an administration official, prosecutors will be told that they may not write the specific quantity of drugs when drafting indictments for drug defendants who meet the following four criteria: their conduct did not involve violence, the use of a weapon or sales to minors; they are not leaders of a criminal organization; they have no significant ties to large-scale gangs or cartels; and they have no significant criminal history.

    Matt, understand those are only guidelines. Further, what constitutes being a leader or having “significant ties” is up to the prosecutors. All this will mean in practice is that US attorneys will have to write some new boiler plate on their charging memos to their bosses. That is it. Other than the odd hippie caught with a joint on a national park, nearly every federal drug case is going to meet these criteria in some ways if the US Attorney wants them to. These are all a part of a some kind of distribution case or the feds wouldn’t be involved. And anyone who is caught with enough drugs for it to be charged as with intent to distribute or gets caught up in a DEA investigation is going to have some kind of “significant ties” to organized crime. They will have bought their drugs from a gang, sold it to a gang member, paid the local gang for protection from being robbed or something.

    1. CONT

      Remember, most gangs are just protection rackets. The “members” are mostly dealers who pay protection money because they can’t go to the cops if someone robs them. But rest assured all those people have “significant ties” to gangs. If this policy change affects 5% of federal drug cases I will be surprised.

      Lastly, this is a policy change. If Holder really believes this, why did it take him four and a half years to do this? He could have done this day one on the job. He just happens to get around to doing it when Obama’s sorry ass is at 41% approval and getting lower every week. Yes, you can do the right thing for the wrong reasons and it is still the right thing. But forgive me if I don’t believe for a minute Holder gives a flying fuck about the prison problem.

  24. Prosecutorial discretion is not justice. This is like saying that driving ten miles above the speed limit is a felony, but we’re going to recommend that prosecutors not include your speed in the charging docs. If it’s not written into law, it’s not guaranteed, which means it’s a favor to be dispensed to the prosecutor’s friends and whoever is willing to “play ball.”

    1. At least somebody catches a break. Every subversion of this diseased legal system is a good thing.

      1. No, it isn’t. Unless you don’t really believe in equality under the law.

    2. ^^THIS^^

      And the language is meaningless. “Use of a weapon” means the person owned a gun. All this is doing is saying “if we feel like giving you a break we will”. BFD. They could have done that anyway.

      Shame on the state run media for just repeating this bullshit like it is true.

  25. Fuck it, semi decent of you Holder.

    1. It is not even semi decent. It won’t mean shit. This is just Holder pissing on your leg and telling you it is raining.

  26. Anyone who thinks we live under “rule of law” is a fool.

  27. Releasing thousands of mid-level drug dealers on the presumption that they are not violent is a fallacy. It takes a killer to protect their large heroin stash from hungry addicts, which is why SWAT teams find multiple weapons during a drug bust.

  28. Fine words. Fine words indeed.

    Unfortunately I don’t believe a word this tool says.

  29. I remain skeptical of changes to Mandatory Minimums are equivalent to “declaring America’s drug war-led over-incarceration a moral failure” but hey, you gotta start somewhere…

  30. Holder is a seriously weird dude. On one hand, he has no problem destroying civil liberties. On the other, he does stuff like this, which indicates that he has more than the two brain cells needed to be a progtard. Science, investigate!

  31. I agree with the other people who said the law needs to be changed. If Holder does this, prosecutors can use it as a bargaining chip to influence / coerce defendants to turn in their higher level suppliers.

  32. When the executive branch selectively enforces the law it is so they can dispense favors and punish their enemies. This is a totalitarian state tool.

  33. My first reactions were: What’s the game, here? Where’s the money, benefit, power play by and for those guys?

    It looks like the general reaction here is similar: distrust, no matter what they say or do, and well-deserved, too.

    They’re all extremists… all flavors, everywhere. Thinking and rational decision-making is dead in American Politics at virtually all levels.

    So sad… “We coulda been a contender…”

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