It’s Easy to Criticize – Update for August 16, 2016

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After serving six years as Attorney General of the United States, the first two of which was under a Congress where both houses were controlled by his own party, Eric Holder took a job this year with the Washington, D.C. law firm of Covington & Burling. From his $4 million a year perch on K Street (we don’t begrudge him a working wage, because everyone’s got hungry mouths to feed at home), he occasionally graces the op-ed pages of America’s press with opinion pieces about changes that should be made in the American justice system.

Last week, Holder wrote a column for The New York Times entitled “We Can Have Shorter Sentences and Less Crime.” In it, he complained that “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.”

Predictably, Holder blamed “a small group of Republican congressmen using language dredged from the past” for sentencing reform having ground to a halt.

critic160816Holder complains 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…”

Horrors. But, Mr. Holder, were you not the Attorney General from early 2009 until last year?  Were you not U.S. Attorney for the District of Columbia from 1993 to 1997, and the Deputy Attorney General from 1997 through 2000? In fact, you sent your deputy, Lanny Breuer, to Capital Hill in April 2009 to tell the Senate Judiciary Committee that you wanted “sentencing laws that are tough, smart, fair, and perceived as such by the American public. We have already begun our own internal review of sentencing and the federal cocaine laws. Our goal is to ensure that our sentencing system is tough and predictable, but at the same time promotes public trust and confidence in the fairness of our criminal justice system.”

Congress responded with the Fair Sentencing Act in 2010, but nothing else, and the high level DOJ task force you promised a few months after you took office, which was to review sentencing laws, never went anywhere.

Ohio State law professor Doug Berman said the other day that he considers “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.” Much of what Holder is complaining about was well known while his hands were on the helm.

“In other words,” Prof. Berman said in his blog, “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 controlled 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.”

Had Holder really seen all of this to be the priority that he said it was in 2009 and suggests it is now that he is able to pontificate without the burden of actually doing anything about the problem, sentencing reform would have been achieved years ago.


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