The Brightest Spot in Holder’s Record

How the attorney general tried to make criminal justice less senselessly punitive

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Attorney General Eric Holder, who last week said he plans to step down as soon as Congress approves his replacement, sees criminal justice reform as the “signature achievement” of his five and half years in office. He is probably right about that, especially since his record on civil liberties and executive power is almost uniformly awful.

Despite a late start, Holder has done more to highlight the harm inflicted by our excessively punitive criminal justice system than any of his predecessors. And he has done more than talk, pursuing policies that will imprison fewer people who do not belong behind bars, or at least free them sooner.

Between 1996, when he was the U.S. attorney for the District of Columbia, and 1999, when he was deputy attorney general, Holder went from advocating stiffer drug penalties to conceding “there are some questions that we ought to ask” about “mandatory minimum sentences for nonviolent drug offenders.” This turnaround probably was related to Holder’s concern about racially skewed justice, which was starkly illustrated by the draconian penalties imposed on federal crack offenders, who are overwhelmingly black.

By the time Holder was appointed attorney general in 2009, he favored equal treatment for the smoked and snorted forms of cocaine. Although Congress did not go that far, in 2010 it shrank the gap substantially.

Yet Holder continued to send mixed signals about mandatory minimums. When the U.S. Sentencing Commission adjusted its guidelines in light of the new crack-to-powder ratio, he urged it not to make the changes fully retroactive. Had the commission listened to Holder, the number of prisoners eligible for shorter sentences would have been reduced from about 12,000 to about 5,500.

Crack sentencing reform was the one bright spot in Barack Obama’s drug policy during his first term as president, when he was remarkably stingy with commutations and broke his promise not to interfere with state laws allowing medical use of marijuana. Holder was intimately involved with the latter failure, repeatedly saying that targeting medical marijuana suppliers who comply with state law would not be a good use of the Justice Department’s resources, only to be contradicted by his underlings.

Since 2012, by contrast, U.S. attorneys have not tried to interfere with a broader version of marijuana legalization in Colorado and Washington, maintaining a policy of prosecutorial forbearance laid out in an August 2013 memo from Holder’s deputy, James Cole. Holder, along with Obama, deserves credit for choosing this nonconfrontational approach and making it stick, establishing an important precedent for letting states go their own way on drug policy.

The same month that the Cole memo came out, Holder gave a speech in which he bemoaned our country’s world-beating incarceration rate, declaring that “too many Americans go to too many prisons for far too long, and for no truly good law enforcement reason.” Since then he has returned to that theme repeatedly.

More important, Holder has followed words with action, instructing U.S. attorneys to charge certain low-level drug offenders in a way that avoids triggering mandatory minimums. That change could help up to 500 defendants each year.

The Smarter Sentencing Act, a bill backed by Holder that the Senate Judiciary Committee approved last January, goes much further. It would make the reductions in mandatory minimums for crack offenses retroactive, cut the mandatory minimums for various other drug offenses in half, and expand the “safety valve” that allows some offenders to escape mandatory minimums.

Even without action by Congress, the president has the power to shorten unjust sentences. Obama has issued only 10 commutations so far, but the Justice Department has indicated that many more should be expected by the end of 2016, which would enhance Holder’s legacy to the extent that it reflects his influence.

Although Holder has been focusing on criminal justice reform for only a year or so, his achievements are praiseworthy. Imagine what he might have accomplished if he had taken up the issue sooner.

Reprinted with permission from Reason.com