Holder: Let’s Not Enforce Our Drug Laws

The Attorney General wants to fight the war on drugs less stupidly.

drugs-money

The Attorney General wants to fight the war on drugs less stupidly.

AP (“Holder Proposes Changes In Criminal Justice System“):

Attorney General Eric Holder is calling for major changes to the nation’s criminal justice system that would scale back the use of harsh prison sentences for certain drug-related crimes, divert people convicted of low-level offenses to drug treatment and community service programs and expand a prison program to allow for release of some elderly, non-violent offenders.

In remarks prepared for delivery Monday to the American Bar Association in San Francisco, Holder said he is mandating a change to Justice Department policy so that low-level, non-violent drug offenders with no ties to large-scale organizations, gangs or cartels won’t be charged with offenses that impose mandatory minimum sentences.

Mandatory minimum prison sentences — a product of the government’s war on drugs in the 1980s — limit the discretion of judges to impose shorter prison sentences.

Under the altered policy, the attorney general said defendants will instead be charged with offenses for which accompanying sentences “are better suited to their individual conduct, rather than excessive prison terms more appropriate for violent criminals or drug kingpins.”

[…]

“We need to ensure that incarceration is used to punish, deter and rehabilitate — not merely to convict, warehouse and forget,” said the attorney general.

Holder said mandatory minimum sentences “breed disrespect for the system. When applied indiscriminately, they do not serve public safety. They have had a disabling effect on communities. And they are ultimately counterproductive.”

While Holder is absolutely right that our war on drugs is simultaneously demonstrably a failure, incredibly expensive, and mostly unjust, I have strong misgivings about his approach. Under our Constitution, it is the prerogative of the legislature to say what the law is and the duty of the executive to enforce those laws.

While a certain amount of prosecutorial discretion is both inherent in the system–resources are, after all, constrained–it is highly problematic for the executive to simply decide not to enforce the laws with which it disagrees. It’s one thing to routinely neglect enforcement of archaic laws that remain on the books out of inertia; it’s quite another to refuse to enforce the current will of the legislature

Again, Holder and I are in fundamental agreement on what our policy should be. If anything, I’d like to go further, decriminalizing whole categories of behavior and shifting into a treatment and education rather than criminal justice approach. But it should be accomplished by the president taking his case to the public and getting the law changed, not an imperial executive deciding it doesn’t have to enforce the law.

UPDATE:  I’m getting substantial pushback in the comments along the lines of “well, the system is broken so extreme measures are warranted.”

First, I’m not comfortable with the Executive deciding on its own authority which laws to ignore simply because it’s frustrated with its inability to get the Legislature to go along. Even though I like the result here, it’s a dangerous notion.

Second, the system hasn’t failed in this instance; it hasn’t been engaged. I would be more sanguine if this were a case where the House had approved the change after a national debate and there were 59 votes in the Senate but action was being thwarted by a petulant minority. Unless I’ve missed it, there has been ZERO attempt by this administration to use the system.

FILED UNDER: General
James Joyner
About James Joyner
James Joyner is a Security Studies professor at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. MstrB says:

    That was the same issue that arose from Prop 8 where the Governor and AG decided not to uphold the, but the Supreme Court in their ruling allowed it to happen.

    So with precedent set, why not try it at the next level up?

  2. legion says:

    Under our Constitution, it is the prerogative of the legislature to say what the law is and the duty of the executive to enforce those laws.

    This is true, but as you note – there is a certain amount of discretion in the system. the whole reason we have human beings in the judicial process instead of robots is that we expect those people to exercise judgement. A cop can decide whether or not to warn, cite or arrest, and on what charge. A prosecutor can decide what charges to file or drop. There _should_ be wider latitude in sentencing, but the legislature has taken that away from the system.

    While this is an extreme response, it’s clearly the only one left when pretty much everybody in the system except the legislature agrees the minimum-sentencing laws are simply _wrong_.

  3. Al says:

    What legion said. Waiting for Congress to act on this is a fool’s errand.

  4. C. Clavin says:

    “…Under our Constitution, it is the prerogative of the legislature to say what the law is and the duty of the executive to enforce those laws…”

    Of course the Constitution envisions a functioning Legislative Branch…not the current dysfunctional state in which treasonous Republicans are working hard to sabotage the Nation.
    I’m all for smart government. The GOP long ago gave up on smart people running their party. You don’t have to be stupid to be a Republican. But if you are stupid…odds are high that you are a Republican.

  5. markm says:

    it is highly problematic for the executive to simply decide not to enforce the laws with which it disagrees

    This seems to be happening a lot lately.

    Are there examples in the past where this was as prevalent?.

  6. Ben says:

    James, I agree that the correct way to change this monstrosity is via the legislature. But I think that this current legislature has proven that no matter how large of a majority of the public want something, they simply don’t care. There currently is no real way to make legislators act counter to the interests of lobbyists and donors (and the great majority of those want more sentences, more prisons, more cops). We might as well ask Tinker Bell to swoop down and sprinkle us with faerie dust.

  7. Franklin says:

    I can both agree with James that his method is much closer to the optimum path, and agree with the others that that ain’t gonna happen in anything resembling the near future.

    I think my bigger question is – how much of a difference is Holder’s action going to make? Adding a criteria of “low-level, non-violent drug offenders with no ties to large-scale organizations, gangs or cartels” means we’ll have to investigate whether the person meets the criteria. This could including going through the NSA records of their phone calls to see if any of them or to known members of those groups. Sounds expensive.

  8. Electroman says:

    I agree with Holder as well as with James Joyner. The executive branch should enforce the laws that are on the books, but since those laws are unjust and (due to legipation) unchangeable, doing this is probably the least of all evils. I don’t have any problem with the “lock them up and throw away the key” method of correction, but not for this. #CommonSense

  9. gVOR08 says:

    Yes, it would be best to have sensible bipartisan legislation to correct this. It isn’t Obama and Holder who decided that’s impossible.

  10. rudderpedals says:

    Mandatory minimum sentencing is the travesty. Even though this beneficial change is touted as a money saving measure where it really shines is as the much-needed attempt at a fix that puts sentencing discretion back into the court’s hands where it always belonged.

  11. Pharoah Narim says:

    Another example of the Obama administrations utter disregard for jobs in this country. Prison and Law Enforcement industries make good livings incarerating the poor in this country. Good honest livings. Now what are they going to do?

  12. Pharoah Narim says:

    As I stated before James, one of the fatal flaws in the psyche of a lawyer is they fundamentally are blind to the fact that the law is a tool to serve humanity. Not the other way around. If the President and AG decide they want to sleep better at night by taking action against the systematic destruction of poor communities–why begrudge them? The law says if I go 55 in a 50 mph zone im in violation and should be punished with a citation. What normally happens is I get a warning. The officer isn’t being derilect in his duty–he is using descretion to determine what degree of punishment is necessary to ensure safety of the community (or save himself some paperwork and a court appearence.) Either way the result is virtually the same–i make changes to by behavior for the mid-term future or until the beginning of the month when officers are looking to make quota anymore.

  13. newshound says:

    This will surely make all criminals voting democrats.

  14. Trumwill says:

    Why am I supposed to believe Holder and the Obama administration of how they say they’ll start enforcing the drug laws? This is an area where they sort of (well, not just sort of, in fact) lack much of any credibility.

  15. michael reynolds says:

    It’s about fwcking time.

  16. James Pearce says:

    It doesn’t appear that Holder announced he will not be prosecuting “low-level, non-violent drug offenders with no ties to large-scale organizations.” Instead, they will still be prosecuted, just not for crimes with mandatory minimum sentences. That’s not too outrageous.

    Or did I read that wrong?

  17. James Pearce says:

    @Trumwill:

    This is an area where they sort of (well, not just sort of, in fact) lack much of any credibility.

    Why do you say that?

    My state legalized medical marijuana in 2000. But it wasn’t until the Holder era that you started seeing the little green cross everywhere. Indeed, Colorado’s experience with medical marijuana can be cleaved into two distinct eras: Pre-Holder, a time mired in uncertainty and half-legitimacy, and Post-Holder, with actual store-front dispensaries operating openly.

  18. Mu says:

    Yes and no on the “only to be decided by the legislature”. The administration could simply reshuffle the drug classifications via administrative procedure and for example largely decriminalize marihuana as a schedule III controlled substance.

  19. stonetools says:

    @James Pearce:

    You read it right,.

    Every study I know of establishes that mandatory minimum sentencing perpetrated a vast injustice on drug offenders and especially minority communities. Unfortunately, Republicans don’t have any probem with that-which is why the current House is never going to act to do away with mandatory minimums.
    I say let Holder do what he can, while we wait for a saner legislature to be elected. James, we should always remember that thousands of people’s lives are ruined every day through the operation of these pernicious laws. THEY can’t wait. Neither should Holder.

  20. James Joyner says:

    @legion: @C. Clavin: I’m not comfortable with the Executive deciding on its own authority which laws to ignore simply because it’s frustrated with its inability to get the Legislature to go along. Even though I like the result here, it’s a dangerous notion.

    Nor, incidentally, is this a case where Holder and Obama have tried and failed. I would be more sanguine if this were a case where the House had approved the change after a national debate and there were 59 votes in the Senate but action was being thwarted by a petulant minority. Unless I’ve missed it, there has been ZERO attempt by this administration to use the system.

    @James Pearce: I’m not outraged by this so much as concerned (see above). But deciding to circumvent the mandatory sentencing laws by creative charging is nonetheless skirting the laws.

  21. Tony W says:

    I’m not comfortable with the Executive deciding on its own authority which laws to ignore simply because it’s frustrated with its inability to get the Legislature to go along.

    Isn’t that how Bolton ended up at the UN?

  22. anjin-san says:

    Interesting article about New Zealand’s approach to dealing with designer drugs

  23. Just Me says:

    I am in agreement with the OP.

    The mandatory minimum is a pretty dumb system but the executive should push congress to change the law rather than just opting to change it themselves through non presecution.

    The drug war itself seems to be a waste of money and personnel but I would once again want congress to be the vehicle of change.

  24. Ron Beasley says:

    @Just Me: The only problem with this is a majority of the Republicans in the House will never agree to anything that puts black and brown people in jail for less time.

  25. anjin-san says:

    The drug war itself seems to be a waste of money and personnel but I would once again want congress to be the vehicle of change.

    Well, the “drug war” has been going on in one form or another since 1919. Sorry, but your vehicle is up on blocks, rusted out, and lacks a motor and a transmission.

  26. C. Clavin says:

    “…First, I’m not comfortable with the Executive deciding on its own authority which laws to ignore simply because it’s frustrated with its inability to get the Legislature to go along…”

    So…you mean like when Bush and Cheney decided to ignore the Geneva Conventions…a treaty ratified by Congress?
    Or do you mean like laws that prohibit unmarried people from living together that are still on the books in Mississippi, Florida and Michigan?

  27. Trumwill says:

    @James Pearce: My skepticism pertains to the medmar dispensers that are being prosecuted, in jail, or died in jail. They got this silly idea that the government wasn’t going to do what they turned around and did.

  28. Ben says:

    @James Pearce:

    I’m going to go out on a limb and say that the reason Trumwill said that is this:

    Do you realize that since Obama/Holder announced that they were de-prioritizing marijuana investigations and prosecutions in states where it’s legal, they’ve continued to raid dispensaries, at a higher rate than Bush ever did? The latest real numbers I can find was from early 2012, by which time he had “conducted more than 170 aggressive SWAT-style raids in 9 medical marijuana states, resulting in at least 61 federal indictments”. He is on pace to shatter Bush’s numbers on marijuana dispensary raids, after starting his presidency saying that he wouldn’t be “using the Justice Department to circumvent state law” on marijuana.

  29. Jack says:

    While I applaud this decision and any decision that eventually kills the war on drugs stuff certain people think should be illegal for you to ingest, I agree that this should be a decision for Lawmakers. Any executive agency that can decide what laws they will not enforce could also decide to enfoce laws that don’t exist and/or decide that certain groups will be exempt while not exempting others (Obamacare and Dream Act comes to mind). This is not reflective of a democratic republic but more suited to a totalitarian regime.

  30. Chris says:

    This has been a long time coming. If you’ve ever studied criminal justice you’ll learn that mandatory minimum’s are the bane of rehabilitation. Plus they were just part of a political platform. This is a very smart move on Holder’s part.

  31. James Pearce says:

    @Trumwill:

    My skepticism pertains to the medmar dispensers that are being prosecuted

    @Ben:

    Do you realize that since Obama/Holder announced that they were de-prioritizing marijuana investigations and prosecutions in states where it’s legal, they’ve continued to raid dispensaries

    Granted…dispensaries have been raided, MMJ providers have been prosecuted. Indeed, the one I used to go to when I had a red card was just indicted on almost 200 charges.

    In almost every case, they are being busted for operating a marijuana dispensary in contravention of the state’s rules. I don’t mind that so much. The rules are what makes the whole enterprise legitimate.

  32. michael reynolds says:

    My approach to life in general is this: When ideology, religion, or anything else requires you to treat your fellow man badly, drop the ideology, the religion, or whatever, and be a decent human being. You never go far wrong treating your fellow man with a degree of compassion.

  33. Trumwill says:

    “It was just something that had to be done, and the result of doing it the way that we did, it was a strong statement that marijuana wasn’t going to be tolerated in Montana.” – US Attorney Michael Cotter. Cotter also said that there was no medical justification for marijuana use at all.

    The government made the claim that they were all breaking state laws and regulations, but when the dispensaries wanted to argue that, they took the position that state law didn’t matter. Indeed, the states had no case that they were in fact breaking state law. From there they used the threat of mandatory minimums and federal law to get plea deals.

    Which is why I will be watching this unfold with skepticism. Whether people actually get sentenced to mandatory minimums or not, he’s going to be making the prosecutors’ jobs that much harder. What happens when they start complaining, and when Obama doesn’t need to do something to mend fences with civil libertarians of the left?

    More broadly, one of the biggest problems I had with what the Obama administration did with MMJ is that they never formally set up a standard for who they would and would not go after. They targeted by volume, then made claims that state regs were broken (not that it was a state matter, as they made clear, and in some places the raids were made over the objections of state officials), and created a situation where everyone operates at the pleasure of the federal government. That’s not a good situation. A worse situation, I would contend, than one where people know to some degree what will and will not land them in prison.

    Hopefully this initiative will work out better.

  34. Ben says:

    @James Pearce:

    Trumwill already said it, but the “they’re breaking state MMJ dispensary laws” argument was just a canard, a reason to justify the raid. None of them were ever actually prosecuted for breaking state law, the state charges were ignored and the charges were exclusively federal, because it’s much easier to charge under federal law than the state MMJ laws.

  35. David M says:

    Is it better than Congress actually addressing the problem? No

    Is it better than waiting for Congress to actually address the problem? Yes

    Might it help pressure Congress to actually address the problem? Hopefully

  36. David M says:

    @Ben:

    Do you realize that since Obama/Holder announced that they were de-prioritizing marijuana investigations and prosecutions in states where it’s legal, they’ve continued to raid dispensaries, at a higher rate than Bush ever did? The latest real numbers I can find was from early 2012, by which time he had “conducted more than 170 aggressive SWAT-style raids in 9 medical marijuana states, resulting in at least 61 federal indictments”. He is on pace to shatter Bush’s numbers on marijuana dispensary raids

    I’m not disputing the numbers, but isn’t that like saying that more iPads were sold after Obama became president than were sold when Bush was president? Unless the number of dispensaries were the same under the two administrations, the number of raids doesn’t really tell us much.

  37. anjin-san says:
  38. Trumwill Mobile says:

    @anjin-san: Wow, that’s a great piece.

  39. walt moffett says:

    Wonder when executive power to commute sentences will be exercised or will that be a step too far?

  40. anjin-san says:

    @ walt moffett

    Thats an excellent question. Obama could put an end to some egregious miscarriages of justice with the stroke of a pen, at the same time sending a message that things are changing.

  41. michael reynolds says:

    @anjin-san:

    I second that re: Anjin’s link, and call attention if I may to the final paragraph:

    However that may be, if you’re open to history and data, it forces humility. We’re in control of less than we imagine and know perhaps even less than that.

    Which is the basis for my skepticism when it comes to economics as well as criminology and sociology and psychology. We see a chart going up and think we see the future. We see a chart going down, and ditto. But when it comes to human affairs, the fact is we don’t really know because we are the thing we’re studying, we are the thing whose behavior we are trying to predict, and perfect self-knowledge isn’t just illusory, it’s an impossibility so long as we possess free will.

  42. walt moffett says:

    And for those looking for a legislative solution, HR 499 Ending Federal Marijuana Prohibition Act of 2013 , would be the way to go. It has a short (16) list of cosponsors. Looks like its in committee limbo however, worth a stamp to let your congress critter know how you feel and asking why they don’t co-sponsor.

  43. Pinky says:

    @C. Clavin:

    Of course the Constitution envisions a functioning Legislative Branch

    Did they? They sure didn’t set it up to do much.

  44. David M says:

    @Pinky:

    Did they? They sure didn’t set it up to do much.

    Seems highly unlikely the founders intentionally set up Congress to be a dysfunctional mess. It’s unfortunate result of the current GOP lunacy, and the two constructive options for the country are formally changing to a parliamentary system or voting the GOP out of power.

  45. anjin-san says:

    @ David M

    No, no, all wrong. The founders WANTED us to have a failed state congress…

  46. OzarkHillbilly says:

    @markm:

    Are there examples in the past where this was as prevalent?.

    Late to the party. Bush, EPA. And no, I don’t recall James raising much of a stink back then. Might have, I just don’t recall it.

  47. An Interested Party says:

    Second, the system hasn’t failed in this instance; it hasn’t been engaged. I would be more sanguine if this were a case where the House had approved the change after a national debate and there were 59 votes in the Senate but action was being thwarted by a petulant minority. Unless I’ve missed it, there has been ZERO attempt by this administration to use the system.

    Hmm…so the President should approach a bunch of yahoos who have fruitlessly tried to repeal PPACA dozens of times with meaningless show votes and ask them to change drug laws…yeah, that’ll really work…

    Even though I like the result here, it’s a dangerous notion.

    I assume you also think that the way that Republicans in Congress are acting is also dangerous…

  48. al-Ameda says:

    Isn’t he (Holder) basically saying that he’ll be issuing guidelines … “suggesting” … that DAs and prosecutors of these type of cases not automatically seek maximum sentencing? That is definitely a good thing.

  49. al-Ameda says:

    @Jack:

    This is not reflective of a democratic republic but more suited to a totalitarian regime.

    Sort of like Signing Statements, right?

  50. Pinky says:

    @An Interested Party: Your comment has nothing to do with anything. The President and Congress may disagree on one topic but that doesn’t mean they can’t work together on other topics, and it doesn’t absolve them from the responsibilities of their offices.

  51. David M says:

    @Pinky:

    You’re asking people to ignore the irresponsible actions of the part of the GOP why? When they have repeatedly not earned the benefit of the doubt?

    And secondly, it’s absolutely valid that the GOP slowdown means this can’t/won’t be addressed in a timely fashion.

  52. An Interested Party says:

    Your comment has nothing to do with anything.

    Well of course you would think that…after all, you are the same person who is trying to argue that the Willie Horton ads had nothing to do with dog-whistle racism and that the Bush campaign had nothing to do with the Willie Horton ads…you will forgive me if I don’t take anything you have to say too seriously…

    The President and Congress may disagree on one topic but that doesn’t mean they can’t work together on other topics, and it doesn’t absolve them from the responsibilities of their offices.

    Oh but of course…the President and Congress maybe disagreeing on one topic is the extent of the problem…forget rose-colored glasses, your glasses must be made of unicorn horns and pixie dust…

  53. Pinky says:

    @An Interested Party: Yes of course. Administrations and Congresses are always able to find some agreements. Look at the budget deals of recent years. Not easy, but they happened.

  54. HelloWorld! says:

    This is what I do not understand when it comes to drug sentencing. I live in a DC neighborhood that used to be plagued by drugs, but development has gotten rid of the problem. I used to see the same drug dealers get arrested and released multiple times per year. Supposedly, there are mandatory 5 years for small amounts of crack or mj. They were also dealing from a rec center that is across the street from a school, which is supposed to make it even more of a crime. If our drug laws are soooo incredibly overly harsh, how is this possible????

  55. fred says:

    AG Holder did not say that. he said judges must be more judicious in sentencing convicts. By the way, if you want to see fine examples of Uncle Toms we read about in days of slavery look no further than our SCOTUS and US senate.

  56. Paul Hooson says:

    During the Reagan Administration, Nancy Reagan championed some public relations campaign entitled “Just Say No To Drugs”, which would have been fine, but then Reagan signed into law these wide range of draconian drug laws that ran for hundreds of pages and included hundred more of pages of Edwin Meese supported laws against pornography known as “The Obscenity Enforcement Act” which would have arrested persons all across the country if one book or movie was found to be obscene in a single small community anywhere. – The entire package of laws, whether dealing with drug policy or obscenity only kicked open the door to widespread civil liberties abuses by government. Some judges have some portions of this legislation as unconstitutional. But, the damage has already been done to our country from these laws that are worse than the drugs themselves.