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August 14, 2016

Former AG Eric Holder brags about his "too little, too late" approach to dealing with federal sentencing's myriad problems

Holder-covington-feature-heroEric Holder, who served as attorney general of the United States from 2009 to 2015, has this notable New York Times op-ed that I ultimately find more frustrating than encouraging. The article is headlined "Eric Holder: We Can Have Shorter Sentences and Less Crime," and here are excerpts that prompt my frustration (based on the dates I highlighed above, and related dates highlighted below, and a bit of inserted commentary):

The financial cost of our current incarceration policy is straining government budgets; the human and community costs are incalculable. Today, a rare bipartisan consensus in favor of changing drug-sentencing laws presents an opportunity to improve the fairness and efficiency of America’s criminal justice system. But to build on this coalition for reform, which includes senior law enforcement officials, we need action in Congress.

In February 2015, President Obama convened a group of lawmakers — including the Republican senators Chuck Grassley of Iowa and Rand Paul of Kentucky and the Democratic senators Dick Durbin of Illinois and Cory Booker of New Jersey — to build support for sweeping reforms. But the momentum has slowed thanks to opposition from a small group of Republican congressmen using language dredged from the past. One, Senator Tom Cotton of Arkansas, even claimed recently that “we have an under-incarceration problem.”

The Republican presidential nominee, Donald J. Trump, is now fanning fears about the level of crime in America, which is actually at historic lows [Ed Note: crime was at historic lows in 2014 and has recently been going up]. Such pandering is a reminder of how we got here in the first place....

Controlling for other factors, the United States Sentencing Commission found that between December 2007 and September 2011, black male defendants received sentences 20 percent longer than their white counterparts. From 1983 to 1997, the number of African-Americans sent to prison for drug offenses went up more than 26-fold, compared with a sevenfold increase for whites. By the early 2000s, more than twice as many African-Americans as whites were in state prisons for drug offenses....

The Justice Department has pioneered reform.  Three years ago, as attorney general, I established the Smart on Crime initiative to reduce draconian mandatory minimum sentencing for low-level drug offenses and encourage more investment in rehabilitation programs to tackle recidivism. The preliminary results are very encouraging. Over the last two years, federal prosecutors went from seeking a mandatory minimum penalty for drug trafficking in two-thirds of cases to doing so in less than half of them — the lowest rate on record. The initiative may not be solely responsible, but 2014 saw the first consecutive drop in the federal prison population in more than three decades, coinciding with a falling crime rate.

Those who argue that without the hammer of a mandatory minimum sentence defendants won’t cooperate are wrong — in fact, the rate of cooperation held steady under the initiative, and the rate of guilty pleas remained constant. The system remained effective and became fairer. Reform has not made us less safe....

Mandatory minimum sentences should be eliminated for many offenses, and where they are still applied, their length should be reduced. The legislative proposals necessarily reflect a compromise, but we must ensure that they go far enough: The judiciary needs greater discretion in imposing mandatory minimums, as do our prosecutors in seeking them. Given the absence of parole in the federal system, we should increase the amount of sentence-reduction credit available to inmates with records of good conduct. And all offenders, regardless of their designated risk level, should get credit for participating in rehabilitation programs....

There is still a disparity in sentencing for offenses relating to crack and powder cocaine, chemically identical substances. Given the policy’s differential racial impact, which erodes confidence in the justice system, this disparity must go. In the light of recent events, we can’t afford criminal justice policies that reduce the already fragile trust between minority communities and law enforcement agencies....

Whatever the outcomes of the bills before Congress and the presidential election, the Justice Department existing reforms must be preserved. Important as they are, all these initiatives have a bearing only on the federal justice system, which houses about 10 percent of the prison population.  For the federal effort to be a template for reform in the states, where most prisoners are detained, Congress must lead.

The nation’s lawmakers must stiffen their spines, ignore divisive language and schedule votes in this congressional session on reform legislation.  An opportunity like this comes once in a generation. We must not miss it.  The over-reliance on mandatory minimum sentences must come to an end.

I have emphasized dates here because I consider former AG Eric Holder (and his boss President Obama) to be among those who really should bear much responsibility if federal policy-makers miss what Holder calls a "once in a generation" opportunity for federal sentencing reform.  Tellingly, much of the incarceration data Holder stresses were well known and widely discussed when he assumed office in early 2009. (For example, in this Harvard Law & Policy Review piece from Fall 2008, I stressed the problems of modern mass incarceration and urged progressives to "mine modern movements in Constitutional and political theory to make new kinds of attacks on mass incarceration and extreme prison punishments" and to "be aggressively reaching out to modern conservatives and libertarians in order to forge new coalitions to attack the many political and social forces that contribute to mass incarceration.")  And yet, as Holder notes, he did not establish DOJ's Smart on Crime initiative until August 2013, and Prez Obama did not convene a group of lawmakers to push for reform in Congress until February 2015.

In other words, both Prez Obama and AG Holder fiddled while the federal sentencing system was still burning with tough-on-crime, mandatory-minimum "over-reliance" from 2009 to 2013 during the entire first Obama Administration Term.  And, critically, we should not lose sight of the important reality that Prez Obama's party controlled both houses of Congress until early 2011 and contolled the Senate until early 2015.  Moreover, the enduring and continued (misguided) opposition of Prez Obama and the Justice Department to mens rea reforms supported by the GOP establishment has arguably been the most critical roadblock to getting sweeping reform legislation enacted even now.

Last but not least, and as Holder reveals in this op-ed, federal prosecutors are still charging mandatory minimum drug sentencing provisions in near half of all drug cases (including in many crack cases where there is still a major, race-skewing sentencing disparity).  I suspect that when Holder says "mandatory minimum sentences should be eliminated for many offenses," he is largely referencing drug offenses in which no guns or violence were involved (where other mandatory minimums are applicable).  If Holder really believed that it would be sound and sensible to eliminate mandatory minimum sentences in such cases, he could have on his own included provisions in his Smart on Crime initiaitve to require line prosecutors to avoid charging under these statutes in all but the rarest drug cases rather than continuing to have these statutes still be applied in nearly half of all drug cases.

Sadly, I could go on and on and on about all the things former AG Holder could have and should have done while serving as U.S. Attorney General for six full years to deal with all the problems he now is quick to lament in the pages of the New York Times.  (Here it bears noting that he gets to write about these problems now from the safety of a corner office at a big DC firm where he is, according to this article, likely making more than $5,000,000/year, well over 20 times more than the hardest working federal prosecutors and federal defense attorneys make.)  Holder's closing sentiment urging federal lawmakers to "stiffen their spines" really gets my goat when his own spine struck me as so soft for his six years as Attorney General, and especially now that he gets to enjoy cashing in on the inside-the-Beltway privileges of allowing one's spine to blow back-and-forth with the prevailing political winds. 

August 14, 2016 at 12:12 PM | Permalink


The "control" of Congress included the filibuster, so any change in the law here would have required sixty votes in the Senate & for months during said control, one or more of the sixty vote they controlled in the Senate were not there for various reasons.

In this time, they dealt with economic issues deemed to be a pending emergency and then dealt with health care reform that in various ways helps those in the criminal justice system. Both took a lot of effort since again the filibuster required sixty votes. There was also the issue of two Supreme Court nominations and a range of other issues specifically in regard to the courts and justice.

I'm all for pushing here & the realization a center left politician in practice will be conservative in various respects in respect to change. But, along with "level of crime" not equaling murder rate (and even that was less than two full years ago, underlining the need to understand his use of figures), let's do so keeping in mind all the facts.

Posted by: Joe | Aug 15, 2016 10:07:25 AM

[the next post in this series covers the 'level of crime' bit, including another comment citing further source material]

Posted by: Joe | Aug 15, 2016 10:08:47 AM

Thanks for the comment, Joe, and you should know I am always eager to be "keeping in mind all the facts." And one fact that ought not be overlooked here is that Holder served as Deputy AG from 1997 to 2001 during a period of historic growth in the federal prison population. During those Holder/Clinton years, according to BOP data (https://www.bop.gov/about/statistics/population_statistics.jsp#old_pops), the federal prison population grew by more than 10,000+ additional prisoners every year, and those are the only years in modern history to see that kind of growth. So, when I think about "all the facts," Holder's record just gets worse and worse.

Moreover, it is especially notable that DOJ managed during Holder's time there to pioneer some especially important and consequential legal argument in support of same-sex marriage and LGBT rights generally. I bring this up to highlight that, despite lots of activities afoot on other fronts, leading important public officials have the means and opportunity to lead in important ways whenever they really want to. (Indeed, Lincoln famously found time to use his clemency power a whole lot while having to worry about winning the Civil War.)

Posted by: Doug B. | Aug 15, 2016 10:51:15 AM

Both the Clinton and Bush administration Justice Departments went "full speed ahead" with tough-on-crime agendas. The mantra was more resources for police, more prosecutions and longer sentences.

Then Holder became AG and he dialed back modestly on the prosecutorial zeal, the equivalent of slowing from 95 mph to a leisurely 80 mph. What did he get for it? GOP congressmen savaged him. While I might wish he and President Obama had pushed harder on some issues, calling him spineless is over the top.

(def. atty)

Posted by: Bryan Gates | Aug 15, 2016 11:28:35 AM

(Here it bears noting that he gets to write about these problems now from the safety of a corner office at a big DC firm where he is, according to this article, likely making more than $5,000,000/year, well over 20 times more than the hardest working federal prosecutors and federal defense attorneys make.)

Not bad work for a lying ass who facilitated the Marc Rich pardon.

Posted by: federalist | Aug 15, 2016 8:42:52 PM

I thought the biggest, quietest and shameless case was for Ex Federal Judge Jack Camp who got caught with 2 loaded hand guns, cocaine and a hooker who sold him the stuff. All while he was on the bench slamming people wuth guideline sentences.

The investigating group found that he did nothing improper in the cases he presided over while on drugs.

I forgot to mention, he only had to plead guilty to a misdemeanor, got to keep his license and his Federal pension. His sentence was something ridiculous like 3 months house arrest. Anyone else would of got 10 yrs and stripped of anything they had going for them.

Holder was AG during this mess. Hmm.

Posted by: MidWestGuy | Aug 15, 2016 11:05:28 PM

Holder was deputy AG ... how much power did he have?

If you want to complain about Bill Clinton (in a period where the politics of the day was to hype the threats of crime & he helped), fine, but sorry. Cheap shot alert.

Next you talk about "support of same-sex marriage and LGBT rights generally." Again, come on. Didn't require passage of legislation. Didn't require a range of things. But, again, I already said that "I'm all for pushing here & the realization a center left politician in practice will be conservative in various respects in respect to change." How this changes the conversation is unclear. There are multiple differences between the two areas.

Does this change the filibuster and all the rest? Nope. He could have done more but there were limitations too. I cited some of them & in the next thread a key "correction" to his speech is also addressed.

Posted by: Joe | Aug 16, 2016 11:17:58 AM

Here is an example of how bad it can be...an example of how racism is still a very major factor in our society and in our criminal justice system. My example is about a man named Lenny Singleton. Lenny's case illustrates how sentencing disparity (racism) is still very much alive in this country. His case was so bad it made the front page of the New York Times on July 5th, 2016. Here is a link to read that story and learn the details...


Lenny has served almost 21 years, more time than rapists, child molesters, and murderers, for crimes in which he did not physically injure anyone and no one filed as a "victim". During his entire time in prison, he has not received a single infraction for anything -- very rare for lifers.

Taxpayers have paid approximately $525,000 to keep Lenny in prison so far and will spend well over a million dollars to keep Lenny incarcerated for the rest of his life -- for robbing less than $550 in crimes where no one was physically injured -- a first time felon with a college degree who served in our Navy andwho committed his crimes under the throes of an addiction to crack cocaine. What Lenny truly needed was some help with his addiction. Twenty years sober now, Lenny is deserving of a second chance. Lenny does not want to continue to be a burden on society. Once released, our plan is to tour the country promoting our book, "Love Conquers All," warning those that might be on the same path and hopefully, helping people to see the need for change in our criminal justice system.

Please learn more before leaving any comments and sign Lenny Singleton's petition at www.justice4lenny.org.

Posted by: Vandy Singleton | Aug 19, 2016 1:26:52 PM

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