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July 6, 2015

Did Justice Department during AG Eric Holder's tenure really do "as much as [they] could" on criminal justice reform?

The question in the title of this post is my (somewhat muted) reaction to a key quote from this newly published Q&A interview with former Attorney General Eric Holder.  Let me quote the Q&A passage of interest here and then provide a somewhat less muted reaction thereafter:

Q: Back to the criminal side, during your tenure, you made criminal justice reform a big priority. Are you frustrated with how far you got or didn't get, and is that something you can work on at Covington also?

A: I'm actually kind of satisfied with where we got.  The job's not done.  You know, I think we did as much as we could using executive branch discretion, but now it's up to Congress to put in place measures that will last beyond this administration.  We made a sea change from the policies that I inherited and consistent with kind of my own experience as just a line lawyer at the Justice Department for 12 years.  Put more discretion in the hands of those line lawyers, who I have great respect for.  But now Congress needs to act.

I am happy and eager to credit former AG Holder for doing significant criminal justice reform work while heading the Justice Department through "executive branch discretion" on topics ranging from mandatory minimum charging policies to marijuana enforcement to drug sentencing reform advocacy.  But the claim that DOJ under AG Holder did "as much as we could" genuinely leads me to wonder, if being a bit intemperate, "What the **%&$^# are you talking about or smoking, Eric!?!?!?!?."  On "executive branch discretion" fronts ranging from implementing the Fair Sentencing Act to DOJ clemency policies and practices to executive branch advocacy in other branches, Holder's Justice Department could have (and, in my view, should have) done so much more to transform the modern structures and systems that have produced modern mass incarceration.

I am inclined to agree with former AG Holder that a "sea change" on criminal justice policies has transpired, but I believe AG Holder and his Justice Department were, generally speaking, much more content to ride along with the changing tides rather than taking a leading role in directing this change.  Consequently, in my view, a more fitting and honest statement from former AG Holder would have had him saying something like: "Given the limited political capital I was willing to spend on significant criminal justice reforms, especially during Prez Obama's first Term, and my own disinclination to lead on this front until I decided exactly when I wanted to resign, I think we ended up getting more done than some people might have expected and we effectively avoided stirring up too much political backlash (except from folks like Bill Otis)."

July 6, 2015 at 02:47 PM | Permalink


"as much as we could" is a vague term that can mean lots of things

There was so much happening the last six years. Yes, given the limited capital one had & the fact the Administration -- I realize this might shock some who label it some sort of radical socialist band -- is fairly conservative in various respects, they "could" do so much. Rightly noted that this is a choice and open to criticism.

Posted by: Joe | Jul 6, 2015 3:09:43 PM

1. They had the power to reclassify marijuana in the CSA so that sentencing would be significantly reduced. When there are 750,000 marijuana arrests every year this action alone would have had a significant impact on the budget and criminal justice.

2. They could have actually stopped federal marijuana prosecutions in states where marijuana has been legalized to various degrees. This was a policy that was stated but the prosecutions continue.

3. Commutations could be rolled out monthly in significant numbers.

Politicians rarely lead the parade before it has left the station. To be fair, the rhetoric of the Justice Department has given hope and promise, they just have to fulfill the promise with action.

Posted by: beth | Jul 6, 2015 3:30:48 PM

I never really found a complete account about this issue; how many federal prosecutions occurred that involved actions "in states where marijuana has been legalized to various degrees" which merely involved things the state in question legalized?

As to reclassification, isn't that subject to an administrative process? Who are "they"?

More use of the pardon power could have been done though this would have required changing the bureaucratic system in place.

Posted by: Joe | Jul 6, 2015 6:15:36 PM

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