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February 25, 2014

Notable emphasis on CJ reform in AG Holder speech to National Association of Attorneys' General

In Washington DC this morning, Attorney General Eric Holder delivered these remarks at the National Association of Attorneys General Winter Meeting. Here are sections that should be of distinct interest to sentencing fans:

In recent years, no fewer than 17 states — supported by the Department’s Justice Reinvestment Initiative, and led by state officials from both parties — have directed significant funding away from prison construction and toward evidence-based programs and services, like supervision and drug treatment, that are proven to reduce recidivism while improving public safety.  Rather than increasing costs, a new report — funded by the Bureau of Justice Assistance — projects that these 17 states will save $4.6 billion over a 10-year period.  And although the full impact of our justice reinvestment policies remains to be seen, it’s clear that these efforts are bearing fruit — and showing significant promise across the country.

From Georgia, North Carolina, Texas, and Ohio — to Kentucky, Arkansas, Pennsylvania, Hawaii, and far beyond — reinvestment and serious reform are improving public safety and saving precious resources.  And I believe that the changes that have led to these remarkable results should be carefully studied — and emulated.

That’s why, last August — in a speech before the American Bar Association in San Francisco — I announced a new “Smart on Crime” initiative that’s allowing the Justice Department to expand on the innovations that so many states have led; to become both smarter and more efficient when battling crime, and the conditions and choices that breed it; and to develop and implement commonsense reforms to the federal criminal justice system.

Under this initiative, we’re ensuring that stringent mandatory minimum sentences for certain federal, drug-related crimes will now be reserved for the most serious criminals. We’re taking steps to advance proven reentry policies and diversion programs that can serve as alternatives to incarceration in some cases.  And as we look toward the future of this work, we’ll continue to rely on your leadership — and close engagement — to keep advancing the kinds of data-driven public safety solutions that many of you have championed for decades.

This also means making good on our commitment to provide formerly incarcerated people with fair opportunities to rejoin their communities — and become productive, law-abiding citizens — once their involvement with the criminal justice system is at an end.  With the Justice Department’s strong support, the ABA has done important work in this regard, cataloguing tens of thousands of statutes and regulations that impose unwise collateral consequences — related to housing, employment, and voting — that prevent individuals with past convictions from fully reintegrating into society.  As you know, in April 2011, I asked state attorneys general to undertake similar reviews in your own jurisdictions, and — wherever possible — to mitigate or eliminate unnecessary collateral consequences without decreasing public safety.  I’ve made the same request of high-ranking officials across the federal government.  And moving forward, I’ve directed every component of the Justice Department to lead by example on this issue — by considering whether any proposed rule, regulation, or guidance may present unnecessary barriers to successful reentry.

Two weeks ago, at Georgetown University Law Center, I called upon state leaders and other elected officials to take these efforts even further — by passing clear and consistent reforms to restore voting rights to those who have served their terms in prison or jail, completed their parole or probation, and paid their fines.  I renew this call today — because, like so many other collateral consequences, we’ve seen that the permanent disenfranchisement of those who have paid their debts to society serves no legitimate public safety purpose. It is purely punitive in nature.  It is counterproductive to our efforts to improve reentry and reduce recidivism.  And it’s well past time that we affirm — as a nation — that the free exercise of our citizens’ most fundamental rights should never be subject to politics, or geography, or the lingering effects of flawed and unjust policies.

I applaud those — like Senator Rand Paul, of Kentucky — who have already shown leadership in helping to address this issue.  And I encourage each of you to consider and take up this fight in your home states.

February 25, 2014 at 02:32 PM | Permalink


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| Members of the Coalition of African American Pastors have launched a petition drive calling for the impeachment of United States Attorney General Eric Holder.|

“The Rev. Bill Owens, president and founder of the Coalition, told the National Press Club in a speech Tuesday
that Holder had violated his oath of office by trying to "coerce states to fall in line with the same-sex marriage agenda."”

 “Attorney General Holder should be impeached for abandoning his duty to uphold and defend the law
 blog.al.com/wire/2014/02/coalition_of_african_american.html

Posted by: Adamakis | Feb 25, 2014 5:15:56 PM

I congratulate Attorney General Holder for a stirring stump speech in his campaign to be President of the NACDL.

Posted by: Bill Otis | Feb 25, 2014 10:05:00 PM

@ Bill Otis: Do you have any problem with former felons automatically having their voting rights restored after they complete their sentences, including probation and parole?

Posted by: Jim Gormley | Feb 26, 2014 8:09:39 AM

The real Texas in caricature...


Posted by: Gary | Feb 26, 2014 6:40:41 PM

Jim Gormley --

Might I inquire why you ask? I am a mere private citizen.

Posted by: Bill Otis | Feb 26, 2014 11:35:40 PM

@ Bill Otis: I ask because that topic (restoration of voting rights to former felons) is part of Attorney General Eric Holder's public speaking that you seem to think so closely aligns him with the criminal defense bar. Three states, Florida, Kentucky and Iowa do not automatically restore the voting rights of former felons after they complete their sentences, including probation and parole. In my home state of Kentucky, that means that more than 20% of the black men cannot vote in elections. I don't see restoration of voting rights as a prosecutor versus defense lawyer issue; I see it as one of fundamental fairness. Our ancestors fought the Revolutionary War against the English over the principle of "no taxation without representation". Since former felons are supposed to begin paying taxes upon their return to society, I think it is fundamentally wrong not to also automatically return their voting rights at the same time. As a private individual, what is your position on this issue, Mr. Otis?

Posted by: Jim Gormley | Feb 28, 2014 11:37:54 AM

Jim Gormley --

Thank you for answering my question.

1. The job of the federal Attorney General is to enforce federal law. It may be proper for him to comment on state law if there is a plausible case that the state law in question violates the federal Constitution.

There is no plausible case that the state laws you mention are unconstitutional. That issue was decided 40 years ago in Richardson v. Ramirez, citing the express words in the Constitution that allow disenfranchisement for participating in rebellion "or other crime." Therefore, in my opinion, this subject -- expressly left to the states under than language of the Fourteenth Amendment -- is not one the AG has any business lecturing the states about. It's not like there's no federal crime needing his attention.

2. I agree with the authors of the Fourteenth Amendment that the states may, or may not, disenfranchise felons. There are plausible arguments for doing it or not, as the authors of the Amendment were aware. As you point out, the great majority of states do not disenfranchise, and those that do, do so only conditionally.

Since I believe that reasonable minds may differ, I have no great problem with either the enfranchising or the disenfranchising states.

3. I do want to note one argument you put forward: "Three states, Florida, Kentucky and Iowa do not automatically restore the voting rights of former felons after they complete their sentences, including probation and parole. In my home state of Kentucky, that means that more than 20% of the black men cannot vote in elections."

When I was an AUSA, it made not a particle of difference to me what color the defendant was. This is because color and race have no moral significance, and thus (in my view) should have no legal significance, either for or against.

It thus makes not a whit of difference to me what the color (or gender) is of the felon disenfranchisees. I suppose that the huge majority of them are male, too, and thus that it could similarly be said that males are "disproportionately subject to disenfranchisement."

Too bad. Citing to racial or other demographic statistics leaves me cold. Demographics don't count. Behavior counts. In addition, I would note that there are all manner of disabilities that flow from a felony conviction, and not being able to vote is, for the practical purposes of everyday life, one of the least of them. The main one is difficulty in getting a job, because potential employers are, shall we say, a bit leery of hiring a guy who knocked over the bank, sold meth, or conducted some swindle. This hardly means that former felons can never be employed. It means only that what they have done in the past is relevant to an employer's decision about what they may do in the future, and in his assessment of their attitude toward rules and authority.

Since even in the three states (six percent of the total) that have disenfranchisement, it is only conditional; and since those affected are free at their option to seek re-instatement of their voting rights; and since (so far as I know) such requests are liberally granted; and since not voting is, in the real world, not the blight it is portrayed in arguments like this (45% or more of voting age citizens simply skip voting even in Presidential elections) -- since all of these things are true, I think the Attorney General would be better advised to attend to the job he's actually hired to do, to wit, enforcing federal law.

Posted by: Bill Otis | Feb 28, 2014 2:36:24 PM

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