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Holder’s New Approach

AG Eric Holder speaks at the American Bar Association on August 12.

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Attorney General Eric Holder announced yesterday that the Department of Justice plans to pursue a “fundamentally new approach” to American law enforcement — which happens to be, actually, a much more positive development than the other Obama-administration “fundamental transformations.”

While the administration is a bit late to the party, given the criminal-justice reforms that numerous conservative governors have already implemented at the state level, a number of his proposals deserve support on their merits. Holder couched the new proposals in the tired, dishonest argument that our criminal-justice system is deeply unjust and racially biased. He plans to implement his changes with, in part, the administration’s penchant for unilateral policy changes and aversion to working with Congress.

Holder wants the Department of Justice to begin, in essence, avoiding mandatory minimum sentences for drug offenses that lack a connection to more serious cases. By his decree, federal prosecutors in such cases will now ignore the amount of drugs possessed by certain nonviolent defendants. This means such defendants can be charged only for standard drug possession rather than with crimes  “that impose draconian mandatory minimum sentences.” Those mandatory minima were created by Congress to apply to defendants in possession of drugs over a certain, relatively small amount, a threshold that the DOJ will now ignore. Ultimately, Holder’s proposal is largely symbolic —  prosecutions relating solely to drug possession are seldom pursued in federal court unless the amounts of drugs are very large or wider criminal conspiracies are involved. We have long been skeptics of the drug war, and would support going much further than Holder recommends. There is little reason for the federal government to be involved in such drug-possession prosecutions at all. Holder did call for stricter scrutiny when it comes to what investigations the DOJ should pursue — there must be a “substantial federal interest,” for one — and a much more comprehensive curtailment of the federal government’s role in criminal prosecution is in order.

But making these changes is the role of Congress. Obviously, the Department of Justice should faithfully enforce the laws of the United States, not look the other way and ignore the facts of a given investigation. The department is endowed with prosecutorial discretion, but that should be used to prioritize resources, not ignore — and effectively repeal — the laws as Congress has written them, the kind of basic distinction that is lost on this administration.

Holder noted and praised the work of a bipartisan group in Congress, including Senators Dick Durbin, Patrick Leahy, Mike Lee, and Rand Paul, to pass reforms of mandatory-sentencing laws. That is fine and good — let them work to pass new laws.

Criminal justice is an area ripe for reform, as the conservative group Right on Crime, a project of the Texas Public Policy Foundation, has been arguing. Both red and blue states have implemented changes to emphasize rehabilitation in prisons, to broaden sentencing options to include community supervision, and to make supervised release more effective. (Holder singled out the work of state governments in Arkansas, Kentucky, and Texas.) The attorney general rightly emphasized that this work should be encouraged and facilitated by the federal government, and some of these practices, where appropriate, should be applied by Congress to the federal system. Holder also noted an ABA review of tens of thousands of unnecessary and harmful statutes and regulations restricting the employment opportunities of ex-convicts; here, too, the federal government should encourage, though not impose, the elimination of licensing restrictions that do not rely on a nexus between the crime and the desired employment.

Unfortunately but not surprisingly, Holder depicted a criminal-justice system that is biased by race. Many of the policies that should be reformed now, and that have led to such “disparities,” were enacted, with broad support and the best intentions, to address an overwhelming crime wave that beset America. Those policies ought to be modified where they have been excessive and ineffective — and the Left and Right agree on a number of instances where this is the case. The U.S. Congress and states have much work to do, and it shouldn’t be preempted by executive fiat. 



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