08/12/2013 07:31 pm ET Updated Dec 06, 2017

One Small Step for Eric Holder

Just so no one makes the accusation that I'm belittling Attorney General Eric Holder's speech today; if my headline were longer, it would conclude: "...and one giant leap for the Department of Justice." Holder's speech today, and his new policy announcements and proposals, are indeed a significant leap forward for the federal government, which -- ever since Nancy Reagan and the tragic death of Len Bias -- has been locking people up for drug offenses at a rate unparalleled in American history. What Holder said today was that it's time for this outdated, expensive, and largely futile policy to end, or at least be severely curtailed. And that, indeed, is a giant rhetorical and philosophical leap forward.

But (you just knew there was going to be one, didn't you?) while Holder can be applauded for directly addressing a significant subject and proposing sweeping reforms, what struck me were two things: a related story in the news today, and the things Holder's speech didn't address. On both, for the time being, Holder can be given the benefit of the doubt -- but only if he subsequently fills in the gaps in his new policy announcement by addressing them in a timely fashion.

The related news story related how prosecutors are coming up with creative new ways to impose even longer prison sentences on low-level drug dealers, and the omissions in Holder's speech all had to do with the changing attitudes and state laws on marijuana. Before I begin, one caveat -- I have not yet read a transcript of Holder's speech, but promise to do so soon. Perhaps there were subjects in it that the mainstream media ignored or missed, to put this another way. Again, I want to give Holder the benefit of any possible doubt, here.

Holder's main points in his speech are pretty irrefutable, and his proposed solutions for fixing problems seem to be well-considered and possibly quite effective. Others are concentrating on the content of Holder's proposals, and hopefully this debate will continue into the future. But what had me scratching my head was reading two stories in my local newspaper today. The first was a preview of Holder's speech, containing the major points he was going to make and the major proposals he was going to suggest. Juxtaposed with this was another story, which seemed to be completely contradictory at first glance.

The story was reported by the Associated Press, and begins:

With the number of heroin overdoses skyrocketing nationwide, a growing number of law enforcement agencies are dusting off strict, rarely used drug laws, changing investigatory techniques and relying on technology to prosecute drug dealers for causing overdose deaths.

It goes on to detail this "aggressive change in tactics," such as:

Rather than going after lower-level users of heroin, prosecutors are looking to take out dealers and members of the supply chain by connecting them and the drugs they sold to overdose deaths and charging them with laws that carry stiff penalties.

One prosecutor was quoted stating: "We're going to be ruthless," and: "We're looking for long-term prison sentences."

Obviously, this runs completely counter to what Eric Holder said today. Prosecutors looking for creative new ways to impose longer and longer prison sentences for street dealers would undermine Holder's new policy suggestions, to put it mildly.

To be scrupulously fair to Holder, however, it bears pointing out that this AP article was written before Holder gave his speech, and that two of the four prosecutors quoted (including the quotes above) are state-level officials and therefore have nothing to do with the federal Department of Justice. They're beyond Holder's control, to put this another way. However, the other two prosecutors the article quotes are "Kerry Harvey, the U.S. attorney for eastern Kentucky," and "Kathleen Bickers, an assistant U.S. attorney in Oregon," both of whom are definitely on Holder's payroll. Both spoke approvingly of stricter penalties for dealers after a user dies of an overdose.

At first glance, this policy would seem to make some degree of sense. Community outrage after a drug overdose death is stronger than after just a possession bust (again, see: Len Bias). The dealer had some degree of culpability, it can be argued, just as a tavern owner bears responsibility when he lets a patron get blind drunk who then kills someone while driving home. But it could also be argued that the liquor store who sells a bottle of hooch to a sober patron bears no responsibility when that patron takes the booze elsewhere, and then drinks it, drives drunk, and kills someone. Legally, the concept of responsibility would be iffy to begin with, it seems.

Legal arguments aside (and again giving Holder the benefit of the doubt), perhaps these two federal prosecutors will soon be getting a memo from the boss in the home office which will instruct them to use their time and resources with different priorities than they now appear to be doing. Perhaps this news article will turn out to be "a good bad example" of what is wrong with the Justice Department's current approach to drug policy, to put it as optimistically as possible.

But the real elephant in the room Holder did not mention today was marijuana, and the public's changing attitudes toward the War On Weed. When Eric Holder took office, 13 states out of 50 -- more than one-fourth of the country -- had legalized marijuana for medicinal use. Since he's been in office, seven additional states have done so (Arizona, New Jersey, Delaware, Connecticut, Massachusetts, New Hampshire, and Illinois, as well as Washington D.C.). This means that a full 40 percent of all states have now legalized medical marijuana -- well over one-third of them, and closing in on one-half. Two states (Colorado and Washington) legalized marijuana for recreational use by adults more than nine months ago, and yet the Justice Department is still "studying" the issue and hasn't indicated what the federal reaction will be.

Early on in President Obama's first term, a memo was released by the Justice Department to instruct federal prosecutors what the policy on medical marijuana should be. It essentially said that if people were following their state's laws to the letter, then the feds should back off and not bother with arrests or prosecutions (even though federal law trumps state law). This was consistent with promises President Obama had made on the campaign trail, in fact. Two years in, a second memo was released which did a complete about-face. Federal prosecutors were told they should feel free to crack down on marijuana even in states with medicinal laws, and even for people who were following the letter of those laws. The results have been predictable: new and inventive ways to harass people -- including landlords, banks, newspapers, sheriffs' departments, state attorneys general, and anyone else they could think of on the periphery -- who were only attempting to live their lives under their state's laws and implement them in a rational fashion. This second memo has never been rescinded, and remains the operative instructions for U.S. attorneys in the field.

But with Washington and Colorado approaching full implementation of a legal marketplace for marijuana -- from producer to seller to consumer -- the Justice Department faces a deadline to let the voters of those two states know how it is going to react. So far, as noted, they haven't said a word on the subject. Sooner or later, one assumes, a third memo is going to appear.

So while Attorney General Eric Holder certainly made news today, and while he appears ready to take some large steps forward on bringing some much-needed sanity to federal drug policy, one speech is merely a starting point. Further steps are needed -- both concrete steps from the Justice Department itself and policy suggestions for Congress to consider. The first of these should involve Holder addressing that counterproductive news story which ran alongside the buildup to today's speech. Some intrepid reporter needs to direct a query to the Justice Department which asks them about the contradiction to Holder's speech of prosecutors salivating over longer and harsher sentences for low-level drug dealers.

Secondly, while Holder rolls out his new policy ideas via departmental memos and suggested changes to the laws, sooner or later he's going to have to address the marijuana issues -- both medicinal and recreational. Changing the mandatory minimum policies and striving to avoid imprisonment for low-level drug crimes are both admirable policies for Holder to implement. It is, in fact, historic that he is even making this attempt at a sea-change in policies enacted in the "Just Say No" 1980s. For the first time since then, a Democrat is willing to risk the "soft on crime" label Republicans have used so effectively over the past three decades, to interject some common sense into the debate. That is admirable indeed, and to be lauded.

But it's only the first step. More are needed. The voters in forty percent of the states (and in Colorado and Washington in particular) deserve it.


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