Thursday, August 15, 2013
Political Mayhem Thursday: The New-Look AG?
This may be way more exciting for sentencing geeks than everyone else, but Eric Holder gave a remarkable speech on Monday at the ABA convention. Some of my thoughts about it are in this new piece over at MSNBC.
Here was the part that jumped out at me the most:
As the so-called “war on drugs” enters its fifth decade, we need to ask whether it, and the approaches that comprise it, have been truly effective – and build on the Administration’s efforts, led by the Office of National Drug Control Policy, to usher in a new approach. And with an outsized, unnecessarily large prison population, we need to ensure that incarceration is used to punish, deter, and rehabilitate – not merely to warehouse and forget.
Today, a vicious cycle of poverty, criminality, and incarceration traps too many Americans and weakens too many communities. And many aspects of our criminal justice system may actually exacerbate these problems, rather than alleviate them.
Wow! It's like something I would write. Or, did write at various times, as did a lot of other people.
Sadly, though, this passage was not followed by it's logical successor: The announcement of a broad commutation for those who have been over-sentenced for narcotics. DOJ is going to give prosecutors more leeway to avoid mandatory minimums, but they already have this in many cases through the "safety valve" provision in 18 U.S.C. 3553(f).
I hope that the Holder speech was the start of a new project based on the concern he expressed so eloquently, not the end of one.
Am I being too optimistic in hoping for and expecting more in the coming days and weeks?
Comments:
-More Clarification:
The unilateral action I was speaking out against was the thrust of the announced policy, charging criminals with lesser crimes to facilitate "fairer" sentences than the law prescribes.
As I say, I concur with your suggestion for a thoughtful presidential clemency regime.
And I would like to see a discussion of these issues in Congress and legislative action commensurate with those findings.
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Mixed emotions regarding our new era in which the "pendulum has swung away from the tough-on-crime [law enforcement] policies" of the past (to quote the NYT). As the Times article asserts, this development at Justice cannot be digested in isolation. The court ruling to end "stop and frisk" in NYC, a twenty-year program that helped to transform the City into a better place, is another milepost in this "new look" at crime and punishment and policing. As I say, I am super ambivalent about what all this means.
Another source of my ambivalence concerning this particular AG and administration and this policy is the diminishing rule of the legislative branch in law-making. Perhaps this is great policy. But, at this moment in time, for this administration, within the context of the last four years, to offer up another high-profile instance of unilateral executive action makes my stomach hurt.
Another source of my ambivalence concerning this particular AG and administration and this policy is the diminishing rule of the legislative branch in law-making. Perhaps this is great policy. But, at this moment in time, for this administration, within the context of the last four years, to offer up another high-profile instance of unilateral executive action makes my stomach hurt.
One last thought (if you all will indulge me):
Thoughtful clemency from this President, in addition to the moral case, in terms of the traditional and constitutional roots of the executive power of clemency, would strike me as a breath of fresh air.
Thoughtful clemency from this President, in addition to the moral case, in terms of the traditional and constitutional roots of the executive power of clemency, would strike me as a breath of fresh air.
Well... the pardon power was created as a unilateral power. Hamilton described (in Federalist 74) why it was important that it be exactly that. It's a very different thing than regulatory administrative actions and funding of state initiatives.
It is odd that this administration, like the Bush administration, is so ready to use those non-Constitutional tools, but so reluctant to use the one that is right there in our founding document.
It is odd that this administration, like the Bush administration, is so ready to use those non-Constitutional tools, but so reluctant to use the one that is right there in our founding document.
Sorry for the lack of clarity. I agree. My point was that a clearly constitutional, unilateral executive power, like the pardon power, rightfully and gracefully executed would be a nice change of pace.
-More Clarification:
The unilateral action I was speaking out against was the thrust of the announced policy, charging criminals with lesser crimes to facilitate "fairer" sentences than the law prescribes.
As I say, I concur with your suggestion for a thoughtful presidential clemency regime.
And I would like to see a discussion of these issues in Congress and legislative action commensurate with those findings.
There is a bill just introduced by Durbin and Chris Lee (mentioned in the speech) that contains a raft of reforms. Rand Paul is a strong supporter. Almost no one thinks it will go anywhere, sadly.
Congress doesn't do much of that stuff with "debating ideas" and "making laws" anymore.
Congress doesn't do much of that stuff with "debating ideas" and "making laws" anymore.
I agree with your assessment of Congress, Mark. However, I fear that the cure of unilateral government by executive fiat may be worse than the disease.
"Well, Congress just stopped functioning, so we had to take over to get things done," strikes me as the first line in a potentially very tragic tale.
"Well, Congress just stopped functioning, so we had to take over to get things done," strikes me as the first line in a potentially very tragic tale.
Personally I think he is trying to rehab his image a little. He's a bit too concerned with his public image.
And it wouldn't be the first time. For instance in 2009 stories came out that the government would not go after medical marijuana dispensaries that hard (http://www.nytimes.com/2009/03/19/us/19holder.html?_r=0).
And yet one year later the tune had changed. (http://www.csmonitor.com/USA/Latest-News-Wires/2010/1015/Obama-adminstration-Eric-Holder-will-not-stand-idly-by-if-Calif.-voters-legalize-marijuana).
And most recently despite DOJ admitting it totally fudged the numbers, they whitewashed Holders speech with the old numbers, basically trying to not make him look bad. http://www.rollingstone.com/politics/blogs/taibblog/doj-compounds-stat-screwup-by-whitewashing-old-eric-holder-speech-20130814
Basically I'll believe something about eric holder when I see it and if it continues when the inevitable backlash comes
And it wouldn't be the first time. For instance in 2009 stories came out that the government would not go after medical marijuana dispensaries that hard (http://www.nytimes.com/2009/03/19/us/19holder.html?_r=0).
And yet one year later the tune had changed. (http://www.csmonitor.com/USA/Latest-News-Wires/2010/1015/Obama-adminstration-Eric-Holder-will-not-stand-idly-by-if-Calif.-voters-legalize-marijuana).
And most recently despite DOJ admitting it totally fudged the numbers, they whitewashed Holders speech with the old numbers, basically trying to not make him look bad. http://www.rollingstone.com/politics/blogs/taibblog/doj-compounds-stat-screwup-by-whitewashing-old-eric-holder-speech-20130814
Basically I'll believe something about eric holder when I see it and if it continues when the inevitable backlash comes
# posted by 
: 11:17 AM
: 11:17 AM
Clay, so far the response seems to be postitive... so I hope that encourages this administration to stay focused on this issue.
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