SENTENCES AUGUST 12, 2013
Some potentially good news from the Justice Department today: It appears that, in certain circumstances, prosecutors will be forbidden from listing the amount of illegal substances at issue in minor drug cases. The problem is that mandatory minimum sentences have the effect of harshly punishing drug offenders, and leading to overcrowded, expensive prisons. The rules will not affect violent offenders, or those that used guns when committing their crimes, or members of violent gangs.
Attorney General Eric Holder is going to announce the new rules in a speech today, as The New York Times explained in a front-page story on Monday:
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."
Interestingly, the Times takes a somewhat cynical view of Holder's motives for this change:
The policy changes appear to be part of Mr. Holder’s effort, before he eventually steps down, to bolster his image and legacy...In recent weeks, he has also tightened rules on obtaining reporters’ data in leak cases and started an effort to strengthen protections for minority voters after the Supreme Court struck down part of the Voting Rights Act of 1965. The move continued an assertive approach to voting rights and other civil rights enforcement throughout his tenure.
I don't think this is quite fair. When I reported on Holder back in June, I tried to explain why his tenure has disappointed so many liberals and civil libertarians. My conclusion was basically that Holder is a good and decent man with strong liberal values who has been stymied throughout his career, often thanks to his own faults and weaknesses. He has allowed himself to be trampled on by other bureaucratic players, and he has never been creative in finding ways to ensure the success of his initiatives. Sometimes, as in the case of the Marc Rich pardon, he simply didn't take a strong enough stand. At other times, such as in his desire to hold civilian trials for terrorists, he couldn't outmaneuver other administration officials. Even on the subject of the Voting Rights Act, which the Times mentions, his well-intentioned moves were undermined by what the DOJ's inspector general called a politicization of the Civil Rights Division. Holder was almost certainly not guilty of overt politicization, but his managerial skills are open to debate.
It is true that when Holder was the U.S. Attorney in Washington, some people speculated that he wasn't prosecuting corruption sufficiently, in the hope of not rocking the boat (and thus ensuring career advancement). But in the case of something like drug sentencing, which also touches on racial issues close to Holder's heart, he is clearly pushing for what he believes. As the Times piece reports:
Mr. Holder’s speech marches through a litany of statistics about incarceration in the United States. The American population has grown by about a third since 1980, he said, but its prison rate has increased nearly 800 percent. At the federal level, more than 219,000 inmates are currently behind bars—nearly half for drug-related crimes—and the prisons are operating at nearly 40 percent above their official capacity.
The real question is not his motives, but rather whether he has the skill and perseverance to actually alter this woeful status quo.
Isaac Chotiner is a senior editor at The New Republic. Follow him @IChotiner.