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Eric Sterling Eric Sterling

Eric Holder’s Drug Policy Record Is Much Weaker Than Many Believe

Advocates for reform are praising the outgoing attorney general's accomplishments. But ultimately his legacy is more words than deeds.

13 Substance

The job of attorney general is unbelievably hard, and it is easy to be critical. Yet on the day after Eric Holder’s announced resignation, the outlines of his legacy are already clear based on the list of his significant accomplishments and the longer list of his significant failures.

Holder failed to rein in federal  prosecutors who wasted time on medical marijuana cases and who brought low-level crack cocaine cases.

It was important that Holder brought the Justice Department to the table to support the Fair Sentencing Act of 2010 reforms that raised the very low triggers for mandatory minimum crack cocaine sentences (from 5 grams to 28 grams and from 50 grams to 280 grams). However, this approach perpetuated the fundamental misunderstanding that there should be any federal focus on low-level crack cocaine cases. The Department of Justice was bringing thousands of these cases a year. The proper approach would have been to order federal prosecutors to only focus on high-level cases of national and international significance.

Every state has the prison beds for the most important crack dealers in the state. Every state has undercover agents and law enforcement resources to prosecute the biggest crack dealer in the neighborhood or the city. But they can’t send agents to Colombia or Mexico to investigate the organizations that make sure the cocaine supply to the local crack house is uninterrupted. That is the job of the Department of Justice and other federal agencies. They have the satellite surveillance and the communications detection capability to truly target those criminals. All of those thousands of cases are an opportunity cost—wasted court time, wasted prison beds, wasted investigative expertise not focused on the gangs terrorizing Mexico or Colombia. It is a waste of DEA agents’ time, breaking down the door of the local crack house. Holder never pushed to change these practices.

He made important statements about the need for sentencing reform [and ordered] federal prosecutors to no longer seek mandatory minimums against low-level, nonviolent drug offenders. Now he is headed out the door. How much of that grand effort to reshape the Justice Department will be accomplished?

He made important statements about the need for more profound sentencing reform. His August 2013 speech to the American Bar Association in which he announced that federal prosecutors would no longer seek mandatory minimums against low-level, nonviolent drug offenders was terrific, but three years too late. Now, just a year later, he is headed out the door. How much of that grand effort to reshape the Justice Department will be accomplished?

Holder ignored a major crisis for most of his term: the breakdown in the office of the Pardon Attorney that reports to him to advise the president on resolution of the thousands of petitions for clemency. Despite front-page Washington Post and ProPublica stories of these scandals there was no reform. Everyone knew that judges had been imposing sentences that were too harsh by decades upon hundreds of federal prisoners. They got no justice under Eric Holder.

Holder has also abetted a profound confusion of the law regarding medical marijuana.

His off-the-cuff remarks in February 2009 about medical marijuana raids being a “low priority” of the administration laid the groundwork for the Ogden memo ordering federal prosecutors not to prosecute growers or distributors in states where it is legal in 2009 that broke open the medical marijuana industry. This was critically important, but legally problematic.

Let’s first recognize that marijuana use is an enormous social phenomenon. It is used by over 20 million Americans regularly, is a significant industry providing employment to tens of thousands and is a major feature of the interaction of police and young people. The police take more people into custody every year on suspicion of marijuana possession than they do on suspicion of committing a violent crime.

Over 20 states now have laws to organize the production and distribution of medical marijuana—in complete violation of federal law. There is no other aspect of American society in which the legal contradiction is more pronounced than in the area of federal marijuana law.

Every day thousands of lawyers are asked by clients to counsel them on business matters that are unambiguous violations of federal law—and every such professional interaction is ethically questionable under state rules that govern the professional practice of lawyers. Of course, countless doctors are being asked for medical advice, and many are providing it, that involves the breaking of federal law.

Holder’s failure to fix federal marijuana law to bring it into harmony with social reality and the laws of the states has led to contempt for the law as an ideal or concept. He failed to discipline his subordinates, such as DEA administrator Michele Leonhart and DEA special agents [who persisted in taking actions against medical marijuana],  and this was a profound abdication of responsibility. He failed to drive the rest of the federal bureaucracy to confront this matter by addressing the issue of rescheduling the drug or by sending proposed legislation to Congress to enact rescheduling.

Holder’s backing of the 2009 Ogden memorandum and 2013 Cole memorandum that created the space for medical marijuana to grow after 2009 was unprecedented and important. But as he leaves office, he leaves these reforms on the shakiest possible ground, easily reversed by the well-entrenched enemies of reform who are still in the Department of Justice—or by a successor prepared to concede the issue at a confirmation hearing before a conservative Senate Judiciary Committee.

He failed to discipline DEA administrator Michele Leonhart [who persisted in taking actions against medical marijuana], and this was a profound abdication of responsibility. He also failed to drive the rest of the federal bureaucracy to confront this matter by addressing the issue of rescheduling the drug.

On the subject of rescheduling marijuana, all he has stated as recently as last Tuesday is that he favors reviewing the science: “I think it’s certainly a question that we need to ask ourselves—whether or not marijuana is as serious a drug as is heroin. [T]he question of whether or not they should be in the same category is something that I think we need to ask ourselves, and use science as the basis for making that determination.” This is a lovely anodyne.  First, the law regarding the evidence—and what the science needs to show—is stacked against rescheduling. Second, the justice department has shown itself willing to disregard the science for policy reasons (or to obtain a conviction) so frequently that an indifference to science might be said to be in the department’s DNA.

Since Holder’s resignation yesterday, many advocates of drug policy reform are giving Holder high marks for his accomplishments, especially when compared to his recent predecessors. But taken on his own terms, Holder was a weak attorney general, and late to push for what he probably knew in his heart to be the right course of action. He failed to use his very close relationship with the president to improve and rationalize the criminal justice system and US drug policy sufficiently that these reforms would have acquired a permanence and acceptance—and that would have ensured his legacy. Holder’s legacy is more words than deeds.

Eric Sterling is the president of the Criminal Justice Policy Foundation, a nonprofit educational and advisory organization.