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Last week Attorney General Eric Holder delivered an unprecedented speech concerning America’s oldest war. Perhaps hoping to carve out a positive legacy that works to bring an end to the War on Drugs, Holder has undoubtedly initiated a step in the right direction.
Speaking at the American Bar Association’s annual meeting in San Francisco, the head of the Department of Justice did not hesitate in displaying his thoughts about our justice system. The stentorian sounds of jaws dropping across the room would ordinarily account for a news report in itself, but the speech’s content was truly unsurpassable on the day.
Mr. Holder began his remarks with a call to forge a “more just society” and asked “to draw upon the ABA’s [American Bar Association] legacy of achievement in calling on every member of our profession to question that which is accepted truth; to challenge that which is unjust; to break free of a tired status quo.” On a normal day this rhetoric might inspire eye rolling or sniggering. The Attorney General, however, took his attitude toward injustice in an atypical direction. “With an outsized, unnecessarily large prison population, we need to ensure that incarceration is used to punish, deter, and rehabilitate-not merely to warehouse and forget…too many Americans go to too many prisons for far too long, and for no truly good law enforcement reason.” For the first time, a U.S. Attorney General was addressing the incarceration complex that has plagued this country for decades.
Although the speech had several policy proposals, three specific policies have the most gravity. First, Mr. Holder has ordered federal prosecutors to pull back against nonviolent drug offenders. Individuals who have only used illicit drugs, from Marijuana to Heroin, and who do not have any connection to large-scale drug cartels or other criminal operations will receive lesser charges. In other words, those whose crime is only nonviolent drug consumption. Until and including now, federal mandatory minimum sentences require that even nonviolent drug offenders be sentenced to X years in prison, depending on the drug’s weight. This means that Joe Smith, who consumes a certain amount of cocaine, is destined for a mandatory minimum number of years in federal prison for the offense, regardless of his criminal record (or lack thereof.) Moreover, these mandatory minimums are quite draconian in practice and refuse the presiding judge any reasonable discretion whatever. The Attorney General is ordering that federal prosecutors, when faced with a nonviolent offender, seek a lesser charge so as to avoid the automatic mandatory minimum sentences.
The second policy included in Mr. Holder’s speech is a loosening of the current restrictions on releasing elderly and ill prisoners who do not pose any real threat to society. About 13.5 percent of all federal prisoners are age 50 or older, and many are serving out mandatory minimum sentences that relate to nonviolent drug offenses. What Eric Holder is not suggesting, or even implying, is that our prison population is overwhelming and the United States should therefore open the doors to its prisons and free everybody inside. Rather, he is making the case that a need for smart reform is here, and included in that reform is the release of prisoners who do not pose any threat to the public. The third policy deals with a positive alternative to the imprisoning of drug offenders. Whereas those individuals who are guilty of nonviolent drug consumption currently land behind bars, Mr. Holder is now calling for an enhancement of drug treatment programs as an alternative. As opposed to simply removing drug users from the streets, this campaign would work to assist drug users in an effort to rid their addiction.
One week after the Attorney General’s staggering remarks have begun to resonate across the political and judicial establishment, there are reasons to employ both hope and a healthy amount of skepticism. For the first time, a United States Attorney General has spoken about the War on Drugs with such a combative tone of voice. The War on Drugs has polluted much more than the justice system in this country, and for quite some time. If you ask someone about ‘the problem in Washington,’ you will almost certainly get a variation of hyper partisanship as a response. ‘Can’t we all just get along?’ Unfortunately for those individuals enwrapped in our prison system, the War on Drugs is one area where both political parties need not dine alone.
This is a case, in fact, where compromise describes the problem rather than the solution. As Mr. Holder outlined in his speech last week, the U.S. population has grown by about 33 percent since 1980. Meanwhile, the federal prison population has grown by 800 percent in that same time period. The U.S. accounts for five percent of the world’s population, yet this country incarcerates 25 percent of the world’s population. Furthermore, half of the 219,000 federal inmates are serving drug-related offenses, which describe a federal prison system that is markedly 40 percent above its capacity. About 40 percent of former federal prisoners (and over 60 percent of former state prisoners) are rearrested within three years of their release. In Ohio there were 50,964 prisoners as of January 2012. The Ohio prison population has increased by 280 percent since 1980, which illustrates the pervasive nature of the War on Drugs. To depict the War on Drugs as simply a federal issue, therefore, is to entirely miss the point.
Mr. Holder’s speech, however, shines a bright light on this lugubrious state of affairs. The duopoly that currently employs Washington has been inactive concerning this pressing issue, and the Attorney General has put forth policy measures that actually combat the serious problem. One example of Washington inactivity disguised as heroic action dealing with the War on Drugs came in 2010 with the passage of the Fair Sentencing Act. This legislation was meant to address the gross disparity between crack cocaine and powder cocaine. Prior to the bill’s passage, those who were arrested for possessing five grams of crack cocaine faced a mandatory minimum sentence of five years in prison. In the meantime, an individual could only receive that same punishment if he or she possessed five hundred grams of powder cocaine. In other words, a bizarre 1:100 disparity was in effect for decades. Moreover, that disparity had racial implications. Of those arrested for possession of crack cocaine, the overwhelming majority are African American. This is simply not the case with powder cocaine.
In 2010 Washington sought to solve this historic problem. With evidence that powder cocaine is no more addictive than crack cocaine, the solution seemed to be staring Congress in the face. Yet, as it sometimes happens in this town, signals were crossed and the solution reached involved reducing the ratio from 1:100 to 1:18. In other words, politicians from both parties did not recognize any fault in the disparity itself, only in the disparity’s margins. This was of course casuistry, and still failed to address the implicit racial dimension of the law’s enforcement. Three years later, African Americans continue to be arrested disproportionately for crack cocaine possession. Washington, in short, has proved incapable of handling the War on Drugs on its own accord. With the Attorney General’s urging, however, executive action has already managed to combat the war effort in a salient rhetorical way. With this transition away from dogged pessimism and toward hopeful resolution, Mr. Holder has restored hope in our justice system as a means to ensure fairness and, if you will pardon the cliché, justice for all.
While the Attorney General provided several useful reasons to remain hopeful, he also left plenty room for skepticism. One week after his words sent media heads spinning, those words’ implications carry particular problems of enactment. First, Holder must rely on federal prosecutors to enact his reforms. It is up to these prosecutors, when faced with a nonviolent drug offender who does not have a tie to any drug cartel or criminal past, to really change the policy narrative in Washington. What exactly defines a ‘tie’ to a drug cartel, for instance, could thwart Holder’s plans from the start. If federal prosecutors are serious about wanting to change the justice system for the better, in the way that their boss outlined, then they have the power to enact that change. If they are not serious, however, then they can easily find ways to sustain the status quo and continue prosecuting nonviolent drug offenders through the mandatory minimum sentences. Second, over two million people are locked up in the United States and only about 10 percent of those prisoners are in federal facilities. Further, only 89,909 of those are there for drug-related crimes. The impact of Mr. Holder’s speech in the long run, then, might be relatively small considering the amount of federal prisoners compared to those in state and local systems. Stated differently, it might be too early to enter a judgment on the actual impact of the Attorney General’s speech.
Apart from practical impact, the larger problem with Eric Holder’s speech is indicative of a societal problem relating to how we see drug users. In his speech, Mr. Holder made sure to reaffirm that “we must never stop being tough on crime.” The problem with the War on Drugs and its relation to the prison complex has always been language. Drug offenses are always first considered ‘crimes’ before anything else. Drugs carry ‘dangerous’ as a description. The conflation of danger, crime, and drugs has resulted in the overpopulation of American prisons. As opposed to seeing drug users as our brothers and sisters, we are supposed to see them as criminals. In this respect Mr. Holder did not go far enough. Real reform will come when we realize that people who pose an exigent threat to others deserve prison, and only after a rigorous justice system has been exhausted. Nonviolent drug users are exempt from that category and that is where they should remain. When federal prosecutors sidestep mandatory minimum sentences, we should ask ourselves why a nonviolent crime requires a mandatory minimum sentence in the very first place.
Mr. Holder’s remarks are a crucial step in the right direction. Before his speech the conversation was outside the mainstream. Now that he has taken direct action to correct an ignoble past, there is a particular responsibility to continue moving forward. After dealing with the War on Drugs for four decades, this country is wearier of war than ever before. Mr. Holder has now signaled an early troop withdrawal, albeit in small numbers.
Speaking at the American Bar Association’s annual meeting in San Francisco, the head of the Department of Justice did not hesitate in displaying his thoughts about our justice system. The stentorian sounds of jaws dropping across the room would ordinarily account for a news report in itself, but the speech’s content was truly unsurpassable on the day.
Mr. Holder began his remarks with a call to forge a “more just society” and asked “to draw upon the ABA’s [American Bar Association] legacy of achievement in calling on every member of our profession to question that which is accepted truth; to challenge that which is unjust; to break free of a tired status quo.” On a normal day this rhetoric might inspire eye rolling or sniggering. The Attorney General, however, took his attitude toward injustice in an atypical direction. “With an outsized, unnecessarily large prison population, we need to ensure that incarceration is used to punish, deter, and rehabilitate-not merely to warehouse and forget…too many Americans go to too many prisons for far too long, and for no truly good law enforcement reason.” For the first time, a U.S. Attorney General was addressing the incarceration complex that has plagued this country for decades.
Although the speech had several policy proposals, three specific policies have the most gravity. First, Mr. Holder has ordered federal prosecutors to pull back against nonviolent drug offenders. Individuals who have only used illicit drugs, from Marijuana to Heroin, and who do not have any connection to large-scale drug cartels or other criminal operations will receive lesser charges. In other words, those whose crime is only nonviolent drug consumption. Until and including now, federal mandatory minimum sentences require that even nonviolent drug offenders be sentenced to X years in prison, depending on the drug’s weight. This means that Joe Smith, who consumes a certain amount of cocaine, is destined for a mandatory minimum number of years in federal prison for the offense, regardless of his criminal record (or lack thereof.) Moreover, these mandatory minimums are quite draconian in practice and refuse the presiding judge any reasonable discretion whatever. The Attorney General is ordering that federal prosecutors, when faced with a nonviolent offender, seek a lesser charge so as to avoid the automatic mandatory minimum sentences.
The second policy included in Mr. Holder’s speech is a loosening of the current restrictions on releasing elderly and ill prisoners who do not pose any real threat to society. About 13.5 percent of all federal prisoners are age 50 or older, and many are serving out mandatory minimum sentences that relate to nonviolent drug offenses. What Eric Holder is not suggesting, or even implying, is that our prison population is overwhelming and the United States should therefore open the doors to its prisons and free everybody inside. Rather, he is making the case that a need for smart reform is here, and included in that reform is the release of prisoners who do not pose any threat to the public. The third policy deals with a positive alternative to the imprisoning of drug offenders. Whereas those individuals who are guilty of nonviolent drug consumption currently land behind bars, Mr. Holder is now calling for an enhancement of drug treatment programs as an alternative. As opposed to simply removing drug users from the streets, this campaign would work to assist drug users in an effort to rid their addiction.
One week after the Attorney General’s staggering remarks have begun to resonate across the political and judicial establishment, there are reasons to employ both hope and a healthy amount of skepticism. For the first time, a United States Attorney General has spoken about the War on Drugs with such a combative tone of voice. The War on Drugs has polluted much more than the justice system in this country, and for quite some time. If you ask someone about ‘the problem in Washington,’ you will almost certainly get a variation of hyper partisanship as a response. ‘Can’t we all just get along?’ Unfortunately for those individuals enwrapped in our prison system, the War on Drugs is one area where both political parties need not dine alone.
This is a case, in fact, where compromise describes the problem rather than the solution. As Mr. Holder outlined in his speech last week, the U.S. population has grown by about 33 percent since 1980. Meanwhile, the federal prison population has grown by 800 percent in that same time period. The U.S. accounts for five percent of the world’s population, yet this country incarcerates 25 percent of the world’s population. Furthermore, half of the 219,000 federal inmates are serving drug-related offenses, which describe a federal prison system that is markedly 40 percent above its capacity. About 40 percent of former federal prisoners (and over 60 percent of former state prisoners) are rearrested within three years of their release. In Ohio there were 50,964 prisoners as of January 2012. The Ohio prison population has increased by 280 percent since 1980, which illustrates the pervasive nature of the War on Drugs. To depict the War on Drugs as simply a federal issue, therefore, is to entirely miss the point.
Mr. Holder’s speech, however, shines a bright light on this lugubrious state of affairs. The duopoly that currently employs Washington has been inactive concerning this pressing issue, and the Attorney General has put forth policy measures that actually combat the serious problem. One example of Washington inactivity disguised as heroic action dealing with the War on Drugs came in 2010 with the passage of the Fair Sentencing Act. This legislation was meant to address the gross disparity between crack cocaine and powder cocaine. Prior to the bill’s passage, those who were arrested for possessing five grams of crack cocaine faced a mandatory minimum sentence of five years in prison. In the meantime, an individual could only receive that same punishment if he or she possessed five hundred grams of powder cocaine. In other words, a bizarre 1:100 disparity was in effect for decades. Moreover, that disparity had racial implications. Of those arrested for possession of crack cocaine, the overwhelming majority are African American. This is simply not the case with powder cocaine.
In 2010 Washington sought to solve this historic problem. With evidence that powder cocaine is no more addictive than crack cocaine, the solution seemed to be staring Congress in the face. Yet, as it sometimes happens in this town, signals were crossed and the solution reached involved reducing the ratio from 1:100 to 1:18. In other words, politicians from both parties did not recognize any fault in the disparity itself, only in the disparity’s margins. This was of course casuistry, and still failed to address the implicit racial dimension of the law’s enforcement. Three years later, African Americans continue to be arrested disproportionately for crack cocaine possession. Washington, in short, has proved incapable of handling the War on Drugs on its own accord. With the Attorney General’s urging, however, executive action has already managed to combat the war effort in a salient rhetorical way. With this transition away from dogged pessimism and toward hopeful resolution, Mr. Holder has restored hope in our justice system as a means to ensure fairness and, if you will pardon the cliché, justice for all.
While the Attorney General provided several useful reasons to remain hopeful, he also left plenty room for skepticism. One week after his words sent media heads spinning, those words’ implications carry particular problems of enactment. First, Holder must rely on federal prosecutors to enact his reforms. It is up to these prosecutors, when faced with a nonviolent drug offender who does not have a tie to any drug cartel or criminal past, to really change the policy narrative in Washington. What exactly defines a ‘tie’ to a drug cartel, for instance, could thwart Holder’s plans from the start. If federal prosecutors are serious about wanting to change the justice system for the better, in the way that their boss outlined, then they have the power to enact that change. If they are not serious, however, then they can easily find ways to sustain the status quo and continue prosecuting nonviolent drug offenders through the mandatory minimum sentences. Second, over two million people are locked up in the United States and only about 10 percent of those prisoners are in federal facilities. Further, only 89,909 of those are there for drug-related crimes. The impact of Mr. Holder’s speech in the long run, then, might be relatively small considering the amount of federal prisoners compared to those in state and local systems. Stated differently, it might be too early to enter a judgment on the actual impact of the Attorney General’s speech.
Apart from practical impact, the larger problem with Eric Holder’s speech is indicative of a societal problem relating to how we see drug users. In his speech, Mr. Holder made sure to reaffirm that “we must never stop being tough on crime.” The problem with the War on Drugs and its relation to the prison complex has always been language. Drug offenses are always first considered ‘crimes’ before anything else. Drugs carry ‘dangerous’ as a description. The conflation of danger, crime, and drugs has resulted in the overpopulation of American prisons. As opposed to seeing drug users as our brothers and sisters, we are supposed to see them as criminals. In this respect Mr. Holder did not go far enough. Real reform will come when we realize that people who pose an exigent threat to others deserve prison, and only after a rigorous justice system has been exhausted. Nonviolent drug users are exempt from that category and that is where they should remain. When federal prosecutors sidestep mandatory minimum sentences, we should ask ourselves why a nonviolent crime requires a mandatory minimum sentence in the very first place.
Mr. Holder’s remarks are a crucial step in the right direction. Before his speech the conversation was outside the mainstream. Now that he has taken direct action to correct an ignoble past, there is a particular responsibility to continue moving forward. After dealing with the War on Drugs for four decades, this country is wearier of war than ever before. Mr. Holder has now signaled an early troop withdrawal, albeit in small numbers.