Attorney General Eric Holder

  • February 14, 2014

    by Jesse Grauman

    Attorney General Eric Holder this week offered welcome support for ending the practice of felony disenfranchisement. Arguing that “permanent exclusion from the civic community does not advance any objective of our criminal justice system,” Attorney General Holder called for “clear and consistent reforms to restore the voting rights of all who have served their terms in prison or jail, completed their parole or probation, and paid their fines.”

    While the degree of felony disenfranchisement varies by state, eleven states permanently disenfranchise at least some formerly incarcerated persons unless the state’s government approves the restoration of voting rights on an individual basis. Three of those states – Iowa, Florida and Kentucky – permanently disenfranchise all formerly incarcerated persons with felony convictions absent individual rights restoration.  An additional 24 deny the right to vote to those who have been released from prison but remain on parole, and 20 of these states disenfranchise those on probation as well.

    As a result, approximately 5.8 million Americans are prohibited from voting as a result of felony disenfranchisement laws. These laws have a disproportionate impact on African-Americans, with nearly one in 13 African-American adults barred from voting, including one in eight African-American men nationwide and one in five African-Americans in Florida, Kentucky and Virginia. 

    These disparate impacts are not only due to the massive racial disparities that exist in our criminal justice system. Rather, many such laws were passed in the aftermath of Reconstruction as a means of denying the franchise to African-Americans. Eleven states passed felony disenfranchisement laws for the first time, or significantly expanded existing laws, in the decade after the Civil War, and states with larger proportions of nonwhites in their prison populations have been more likely to pass such laws. Indeed, in 1985, the Supreme Court unanimously struck down a felony disenfranchisement provision in Alabama’s state constitution in Hunter v. Underwood, finding that the provision, although neutral on its face, was enacted with discriminatory intent. As the Court noted, “the Alabama Constitutional Convention of 1901 [when the measure was passed] was part of a movement that swept the post-Reconstruction South to disenfranchise blacks” and the president of that convention stated that its goal was “to establish white supremacy in this State.” 

  • August 30, 2013
    Guest Post

    by Alex Kreit, Associate Professor of Law, Thomas Jefferson School of Law, San Diego. Kreit is author of the casebook, Controlled Substances: Crime, Regulation, and Policy and the ACS Issue Brief, “Toward a Public Health Approach to Drug Policy.”

    Yesterday, after months of anticipation, the Department of Justice announced its response to marijuana legalization ballot measures passed by voters in Washington and Colorado last November.  The DOJ said it does not plan to sue Washington and Colorado to block the new laws.  The agency also released new prosecutorial guidance that indicates it may limit the enforcement of federal drug laws in states that have legalized marijuana for recreational or medical purposes.

    If you felt a sense of déjà vu reading that paragraph, there’s a good reason. 

    In 2009, The New York Times ran a front-page article about a different DOJ memo under the headline U.S. Won’t Prosecute in States That Allow Medical Marijuana.  The 2009 Times article reported that “[p]eople who use marijuana for medical purposes and those who distribute it to them should not face federal prosecution, provided they act according to state law, the Justice Department said Monday in a directive with far-reaching political and legal implications.”

    By early 2012, however, Rolling Stone ran a story titled Obama’s War on Pot in which writer Tim Dickinson forlornly told the story of how “over the past year, the Obama administration ha[d] quietly unleashed a multiagency crackdown on medical cannabis that goes far beyond anything undertaken by George W. Bush.”

    Will the DOJ’s new marijuana policy live up to the hype?  Or, will we see a replay of what happened following the 2009 memo?  Policy advocates seem to be split so far, with some calling it a historic turning point for U.S. drug policy and others taking a wait-and-see approach.

    Only time will provide a definitive answer to this question.  But comparing yesterday’s memo with 2009’s can help us understand what to watch for in the months to come.  A few points are worth particular attention.

  • August 13, 2013
    Guest Post

    by Nkechi Taifa, senior policy analyst for civil and justice reform at the Open Society Foundations and convener of the Washington-based Justice Roundtable

    U.S. Attorney General Eric Holder announced significant steps today at the American Bar Association’s annual meeting in San Francisco to correct the deepest, costliest and worst aspects in our criminal justice system. The reforms he outlined in remarks entitled, Smart on Crime, were a long time coming for the criminal justice advocacy community.

    Although Congress recently approved legislation to help prisoners re-enter society and to reduce the infamous disparity between crack and powder cocaine, previous Presidents and Congress have never addressed the root causes of mass incarceration. These unjust laws and policies that drive up the U.S. prison population include inflexible front-end decisions that define who goes to prison and for how long, as well as stubborn back-end choices that impede early release.

    Today, in the fifth decade of both the March on Washington and the War on Drugs, the Attorney General has ushered in a revolutionary moment by advancing the policy discussion around widespread incarceration that has cost billions of dollars without making society any safer, and reducing flaws of a system that sends too many people of color to prison.

    The policies outlined in Holder’s speech will recalibrate the federal criminal justice system by correcting obstacles, inefficiencies and inequities and transforming law enforcement strategies so they alleviate, rather than exacerbate, harsh punishment.

  • August 13, 2013
    Guest Post

    by Stephen Wermiel, Professor of Practice, American University Washington College of Law

    Attorney General Eric Holder touched off a new chapter in his Justice Department tenure yesterday by unveiling a set of far-reaching and important criminal justice reforms that supporters of the Obama administration have long awaited. Holder’s speech captured the attention and fired up the spirit of an otherwise somewhat lethargic American Bar Association annual meeting in San Francisco. Holder expressed what is likely the strongest, clearest vision yet from the Obama administration and one that his admirers have hoped would be part of his legacy: “Today, a vicious cycle of poverty, criminality, and incarceration traps too many Americans and weakens too many communities. And many aspects of our criminal justice system may actually exacerbate these problems, rather than alleviate them.”

    Of important note is that a number of the things Holder discussed can and apparently will be done within the Executive Branch and do not require consideration or approval by a Congress incapacitated by partisan gridlock. Specifically, Holder has instructed federal prosecutors to change the way they bring drug charges against individuals who commit low-level offenses and who have no ties to gangs, drug cartels or organized crime. Federal law mandates the use of mandatory minimum prison sentences for some drug crimes, and changing the law would require Congress to act. Holder noted that there is bipartisan support in the Senate to reform mandatory minimums for drug offenses. But Holder can act on his own and now has done so to urge federal prosecutors to exercise discretion by charging different crimes that do not trigger mandatory minimums and that, as Holder said, will better reflect the severity of the misconduct without draconian excessive criminal sentences.  This is an important recognition of the major shortcomings of the decades-old war on drugs that has consumed billions of dollars in law enforcement budgets and tens of thousands of lives ruined by prison terms that were out of proportion to the crime or the nature of the individual. Holder also said U.S. attorneys will be urged to make greater use of drug diversion programs as alternatives to incarceration.

    Another very important recognition by Holder followed on the heels of President Obama’s remarks on the Trayvon Martin case last month. Holder told the ABA “that young black and Latino men are disproportionately likely to become involved in our criminal justice system – as victims as well as perpetrators.” He added, “We also must confront the reality that – once they’re in that system – people of color often face harsher punishments than their peers.”  The racial injustice of the criminal justice system is a subject that needs urgent attention from Holder and other leaders.

  • August 13, 2013
    Guest Post

    by Alex Kreit, Associate Professor of Law, Thomas Jefferson School of Law, San Diego. Kreit is author of the casebook, Controlled Substances: Crime, Regulation, and Policy and the ACS Issue Brief, “Toward a Public Health Approach to Drug Policy.”

    Attorney General Eric Holder announced a new charging policy that has the potential to eliminate mandatory minimum sentences in many drug cases. Holder’s Aug. 12 announcement marks the most significant policy change in what has been, until now, a largely rhetorical shift away from the failed war on drugs

    The new prosecutorial guidelines are aimed at one of the most disgraceful and frequently criticized features of drug war-era mandatory minimum sentencing: tying punishments to drug type and quantity in low-level cases.  The practice began with a hastily drafted law passed by Congress in 1984, at the height of drug war fervor.  The measure sought to increase and standardize punishments in federal drug cases through mandatory minimum penalties.  Legislators claimed that the law would create a two-tiered penalty structure, subjecting so-called “serious” drug traffickers to five-year minimum sentences and “major” traffickers to ten-year prison terms.  (These mandatory penalties can increase to 20-years or even life for defendants with prior felony drug convictions.)

    The problem is that while Congress referred to “serious” and “major” traffickers in debating the mandatory minimum provisions, the five- and ten-year penalties are “triggered not by role but by drug type and quantity instead.”   And, it turns out; drug type and quantity are a poor measure of a drug offender’s culpability. 

    Take drug couriers for example.  Drug couriers are considered expendable by drug organizations.  Most are addicts or otherwise down-on-their luck.  In San Diego, where I live, drug organization recruiters seek out homeless people for this job just a few blocks from the heart of downtown.  They might be paid $1,500 to transport hundreds of thousands of dollars’ worth of drugs across the border.