Posted on November 1, 2013

Eric Holder Says the Justice System He Leads Is Broken. Can He Fix It?

Ryan J. Reilly, Huffington Post, October 31, 2013

The East Elmhurst neighborhood of Queens, near LaGuardia Airport, was mostly Italian immigrants after World War II. But in the years that followed, the New York neighborhood slowly gave way to a black majority as one of the first neighborhoods where African-Americans could buy homes.

Eric Himpton Holder, born in 1951, watched the neighborhood change. He went through New York public schools, seeing how more and more East Elmhurst residents were being locked up. Holder thinks he might have been one of them, if he had made a few different choices in those early years.


The path to prison has been worn by millions of black men since the 1960s, when race-baiting political rhetoric turned into tough-on-crime legislation that disproportionately impacted African Americans. With the second term of the Obama administration well underway, the first African-American to hold the job of America’s top law enforcement official is planning to do something about it.

In a major speech before the American Bar Association in August, Holder called for “sweeping, systemic changes” to a “broken” judicial system. He’s already taken several major steps on his own as part of the recently announced “Smart on Crime” initiative, including instituting a policy that allows certain drug offenders charged with federal crimes to avoid harsh mandatory minimum sentences. He announced that he would allow Colorado and Washington’s pot legalization initiatives to be implemented free of federal interference. In November, he’ll travel around the country to call attention to various programs that are helping reduce prison overcrowding and recidivism.

Twenty years ago, Holder gave up what could have been a lifelong position as a judge in D.C. Superior Court that Ronald Reagan had given him when Holder was just 37 years old. Having sentenced drug defendant after drug defendant to prison for long sentences–many of them young African-American men–Holder wanted to rejoin the Justice Department and make changes from the inside. Now he has his chance.


Holder’s efforts could easily be dismissed as a legacy play by an attorney general who has faced criticism from both the left and right. But a closer look at Holder’s record shows he’s long had an interest in reforming criminal justice, even if there’s not much progress to show from the tough-on-crime 1990s. As U.S. attorney in D.C., where federal prosecutors handle both federal and local cases, he did manage to move many minor drug crimes from federal court into local courts, allowing defendants to avoid harsher sentences. When he was in private practice during the Bush administration, he was a member of a coalition that included Newt Gingrich and advocated for sentencing reform.

Pushing any major reforms through Congress is a long shot. And there are limits to what Holder can do on the executive level, given that so many drug crimes are prosecuted by state and local authorities. But looking over the past 20 years, when politicians were much more sensitive to soft-on-crime attacks, now appears to be as good a time as ever. Tea party-favorite Sen. Rand Paul (R-Ky.) has called for major sentencing reform, saying that sentencing guidelines disproportionately affect minorities and call to mind Jim Crow laws. Newly-elected Sen. Cory Booker (D-N.J.)has made criminal justice reform a top priority.

Holder met with Booker and other mayors earlier this year and the attorney general hopes to work with him on criminal justice reform, a DOJ official said.


The shift also comes amid a growing prison overcrowding problem and concern about what Holder called the “really inordinate amount of money” that the government spends on incarceration. About a quarter of DOJ’s overall budget, $6.4 billion, goes to prison costs alone.


Before his confirmation, Holder began talking with Sen. Jeff Sessions (R-Ala.), a former U.S. attorney, about lessening the sentencing disparity between crack and powder cocaine. President Barack Obama eventually signed a law to address the disparity in 2011. Holder also did away with the Ashcroft memo, a 2003 directive from Attorney General John Ashcroft which had required federal prosecutors to always pursue the most serious charges they could sustain against a criminal defendant. Holder testified before the sentencing commission, an unusual step for a sitting attorney general. He reversed a Bush administration policy that had defendants waive their right to DNA testing, even though that right was guaranteed under federal law. He advocated for reentry programs as a way to crack down on recidivism, and the Justice Department has sent millions of dollars in grants to such programs.


Now, as part of DOJ’s Smart on Crime initiative, U.S. attorneys offices around the country are required to develop district-specific guidelines for when federal prosecutions should be brought. For certain low-level drug offenders, federal prosecutors won’t list drug quantities, allowing them to avoid harsh mandatory minimums.

Booker’s plan includes broadening the conversation about decriminalizing marijuana, but Holder doesn’t consider the Justice Department’s decision to allow marijuana regulatory schemes to move forward part of DOJ’s overall criminal justice reform effort.

But another way Holder could pull back from the drug war is by reining in anti-drug Byrne grants, part of a program that can give state and local police incentives to prioritize drug enforcement, named for Edward Byrne, a New York City narcotics officer killed by a drug dealer. A 2009 review of data from the Byrne grant program found there wasn’t enough evidence to prove that the work done on drug cases by local task forces given these federal funds was effective. Holder, while supportive of the federally-funded local task force concept in general, told HuffPost they may be getting a close look in an era of tight budgets.