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March 2, 2015

AG Holder provides Congress a sentencing reform to-do list

This new Politico story indicates that a confirmation vote for Loretta Lynch to replace Eric Holder as Attorney General may still be week away. But AG Holder is still in the midst of some parting shots as he prepares to leave his position, and this Washington Post commentary finds the AG making a full-throated pitch for more congressional sentencing reforms.  Here are excerpts from a piece headlined "Time to tackle unfinished business in criminal justice reform":

Today, a rare consensus has emerged in favor of reforming our federal drug sentencing laws.  This presents a historic opportunity to improve the fairness of our criminal justice system.  But unless we act quickly, we risk letting the moment pass.

The Justice Department has sought to be an early innovator on this front.  A year and a half ago, I launched the Smart on Crime initiative — a comprehensive effort to reorient the federal government’s approach to criminal justice....  Preliminary results from this effort are extremely encouraging....

Last year also witnessed the first overall reduction in the federal prison population in 32 years.  Most impressive of all, we achieved this drop in incarceration at the same time we cut the crime rate, marking the first simultaneous reduction in both crime and incarceration rates in more than four decades.

But while it is indisputable that we are moving in the right direction, there is a limit to what the Justice Department can accomplish on its own.  Moving forward, we need to build upon, and make permanent, these gains through action in Congress.... [A] few specific items of unfinished business should command our immediate attention.

First, although Obama signed the Fair Sentencing Act to eliminate a discriminatory 100-to-1 sentencing disparity between crack and powder cocaine, thousands of individuals who committed crimes before 2010 are still serving sentences based on the old ratio. This is unfair.  Congress should pass legislation to apply that statute retroactively so that no one is sitting in prison serving a sentence that Congress, the president and the attorney general have all declared unjust.

Second, while the Justice Department has declined to seek harsh mandatory minimum sentences in cases where they are not warranted, we need to codify this approach. Congress should pass one of the multiple bipartisan bills aimed at restricting and refining those crimes to which mandatory minimums apply.

Third, in individual states, legislatures should eliminate statutes that prevent an estimated 5.8 million U.S. citizens from exercising their right to vote because of felony convictions.  These unfair restrictions only serve to impede the work of transitioning formerly incarcerated people back into society.

Finally, we should seek to expand the use of federal drug courts throughout the country for low-level drug offenses.  These programs provide proven alternatives to incarceration for men and women who are willing to do the hard work of recovery, and it is my hope that, in the next five years, there will be an operational drug court in every federal district — with individual states following suit.

While I will depart the Obama administration in the coming weeks — and my own formal career in law enforcement will soon draw to a close — I intend to continue this work, to promote this mission and to advance this cause.  And I hope that, in the days ahead, leaders in Congress and around the country will come together to help build the fairer, more efficient and more effective criminal justice system that all Americans deserve.

In this post over at The Volokh Conspiracy, titled "The President doesn’t need Congress’s help to fix unjust sentences," Will Baude properly notes that Prez Obama could take care of the first item on the AG's action list without any action by Congress.  As Will notes, the "Constitution gives the President 'Power to grant Reprieves and Pardons for Offences against the United States.' If the President indeed shares the Attorney General’s views, he can eliminate the thousands of unfair sentences at a few strokes of a pen."  Will speculates that "the President is unwilling to exercise his constitutional pardon power [this way] because he wants political cover if somebody who is pardoned later goes on to do something wrong." 

I am glad Will highlights the president could through commutations (or pardons) readily fix on his own problems and unfairness presented by the non-retroactivity of the Fair Sentencing Act.  Those problems persist because of President Obama's failure of resolve, not a failure of power, on this front.  In addition, I think the President could (and should) be using a lot more of his political time and energy trying to move Congress forward on other fronts as well (e.g., he could have, but failed to, talk at lengthy about these issues during his State of the Union address not long ago).

March 2, 2015 at 03:08 PM | Permalink

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Comments

Another reason Obama might not want to commute a large number of people is that he is already getting opposition for his discretion in the immigration area. His constitutional power to do it might be even more clearer, but it still would be seen as a controversial move. This can be seen as a sort of different type of "political cover," perhaps.

The "resolve" is not just on him. There is a limited amount of executive resources here, including as he has to negotiate with a Republican Congress. I continue to find the commentary on this subject a tad one-sided.

Posted by: Joe | Mar 2, 2015 4:02:12 PM

Sorry, Joe, but Obama will do what he wants irrespective of what the GOP in Congress does. For the most part, he has John Boehner and Mitch McConnell ceding to his demands whenever he wants, and when Boehner and McConnell can't get the votes he needs, then he will use the Executive Action.

He is getting ready to use another Executive Order to eliminate corporate tax cuts anyway. But the real deal is this: If a GOP president is elected, Obama plans on releasing tens of thousands before his term ends, not really caring if a Democrat or Republican wins, as he's going to hang around in Washington as the President Emeritus (they are actually coming up with that title just for him).

Posted by: Eric Knight | Mar 3, 2015 10:51:05 AM

"Sorry, Joe, but Obama will do what he wants irrespective of what the GOP in Congress does."

Obama's discretion is affected by who controls Congress. Congress has to agree to various things. The Republicans are not "ceding to to his demands whenever he wants." That's absurd. Yes, when we are talking about DHS funding, Obama has the upper hand on some level. What he "plans" to do regarding releasing prisoners are unclear.

Posted by: Joe | Mar 3, 2015 11:15:53 AM

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