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December 17, 2015

Curious Cato commentary attacks Obama Administration for failing to change prosecutorial charging policies that have been changed

As regular readers know, I have often bashed the Obama Administration for too much talk and too little action in the arena of criminal justice reform.  But because I always try to ground my criticisms in facts and to give credit to the Administration for its actions, I must call out as misinformed and misguided this new Cato commentary by  Nat Hentoff headlined "Obama Ignores Judge’s Plea for Justice Reform."

The Hentoff commentary properly notes that the "charging policies that federal prosecutors are forced to follow are the one area of criminal justice reform that the president of the United States has the authority to impose unilaterally." But the commentary suggests, wrongly in my view, that through the 2010 Holder memorandum (first discussed here) the Obama Administration failed to change federal charging policy for the better.  

In addition, and even more troublesome, the Hentoff commentary completely fails to mention the important 2013 Holder memorandum (first discussed here) and a 2014 Holder follow-up memo (discussed here) concerning charging of mandatory minimums and recidivist enhancements in federal drug cases.  Also, and not to be overlooked in the context of federal charging policies, the Obama Administration has been quite bold when issuing a series of major charging directives that encourage federal prosecutors largely to keep their noses out of state-level marijuana reform efforts.  Collectively, these major charging directives from the Obama Administration's Department of Justice to line prosecutors have marked a significant shift in charging policies, and various federal sentencing statistics suggest these changed DOJ charging policies have been having a significant impact on federal criminal justice outcomes. 

This all said, though I am troubled by the particulars in this Cato commentary, I see much merit in Hentoff's final critical sentence: "Obama continues to pay lip service to criminal justice reform by enacting half-hearted half-measures."  Though I believe the Obama Administration has actually been quite effective and astute in the modification of federal prosecutorial charging policies, I also believe that it has been far less effective and astute in moving forward with an array of other badly needed federal criminal justice reform efforts.

December 17, 2015 at 08:43 AM | Permalink


It is not really "curious" -- Nat Hentoff (who is around John Paul Stevens' age, so good to see he's still going on strong) at times had over the top op-eds over the years.

Posted by: Joe | Dec 17, 2015 12:09:07 PM

Who funds the Cato Institute? I am an old dog and I remember the name: Nat Hentoff from years ago, such as in the 1960s. I am going to Google his name and see from whence he sprung.

Posted by: Liberty1st | Dec 17, 2015 10:53:43 PM

Hentoff is 90 and hence younger than me. Here is a bit from Wikipedia:
Hentoff joined Down Beat magazine as a columnist in 1952.[2] From 1953 through 1957, he was an associate editor of Down Beat. In 1958 he co-founded The Jazz Review, a magazine that he co-edited with Martin Williams until 1961. His career in broadcast journalism began in the closing days of World War II on WMEX, a Boston radio station. Among his early assignments were live broadcasts of professional wrestling from the old Boston Arena. In the late 1940s, he hosted two notable radio shows on WMEX: JazzAlbum and From Bach To Bartók. Hentoff continued to do a jazz program on WMEX into the early 1950s, and during that period also was an announcer on WGBH-FM on a program called Evolution of Jazz. By the late 1950s, Hentoff was co-hosting a program called The Scope of Jazz on WBAI-FM in New York City.[3]

In June 1955, Hentoff co-authored with Nat Shapiro Hear Me Talkin' to Ya: The Story of Jazz by the Men Who Made It. The book features interviews with some of the best-known names in jazz, including Dizzy Gillespie, Duke Ellington and Paul Whiteman. Hentoff went on to author numerous other books on jazz and politics.

On December 31, 2008, the Village Voice, which had regularly published Hentoff's commentary and criticism for fifty years, announced that he had been laid off.[4] In February 2009, Hentoff joined the libertarian Cato Institute as a senior fellow.[5] In January 2010, however, Hentoff returned and wrote one article for the Voice. Since February 2008 Hentoff has been a weekly contributing columnist at WorldNetDaily.com.[6]

Posted by: Liberty1st | Dec 17, 2015 10:57:17 PM

The Village Voice is a shell of itself these day.

Hentoff wrote a regular column for them focused on civil liberties issues, including free speech and criminal justice issues. He also as noted in the thumbnail has connections in the cultural scene. Among the people he interviewed was Justice Brennan who encouraged him to use personal stories to highlight constitutional issues.

Posted by: Joe | Dec 18, 2015 9:57:41 AM

would be interested in seeing what you're using to verify that the changed standards were actually implemented by prosecutors who have taken public stands against them

Posted by: mike | Dec 18, 2015 1:21:52 PM

The Cato Institute is somewhat suspect in my mind. A libertarian is not necessarily for liberty and is the opposite of a liberal. They are closer to a librarian.

Posted by: Beldar | Dec 19, 2015 12:54:29 PM

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