Sunday, August 18, 2013

Responding to Eric Holder's Drug Policy Changes

When I read the headline of the Saturday Star Tribune op-ed, Why Holder's drug policy changes won't work, I was immediately resistant. Holder's announcements, it seems to me, are a step in the right direction until Congress can change the minimum sentencing laws and so on.

But the writer, St. Thomas law professor Mark Osler, convinced me. He writes that Holder's move is based on three myths:

  1. That directives from the DOJ have a big effect at the working level of criminal justice enforcement. As a former federal prosecutor, the professor says with some authority that "federal prosecutors who want to charge harshly will find a way to do so, and those who want to avoid mandatory minimums already have ways to do that." See, for instance, the controversy over Minnesota's U.S. Attorney, B. Todd Jones, being appointed to head the ATF. Part of that was because he wasn't charging lower-level drug crimes.
  2. That "incarceration solves the problem of narcotics at all. Narcotics distribution is a business, and you rarely shut down a business by depriving it of labor in a labor-rich environment. To shut down any business, you need to deprive it of cash flow and credit. We should ignore the people and drugs and take the money — using techniques like those we’ve used to freeze funding for terrorist groups — if we really want to solve the problem of illegal narcotics. Such an approach would be a natural if the people heading our antidrug efforts were (1) trained in business, and (2) dedicated to solving the problem rather than making cases."
  3. That prosecutor discretion is the only tool available to the Executive Branch to change the "incarceration binge." There are two better tools, Osler writes: "First, investigators in DOJ agencies and task forces should stop bringing low-level cases to prosecutors in the first place. Once a case is brought to an assistant U.S. attorney, he or she must explain a declination of the case, but not an acceptance. That creates a presumption in favor of taking the case, a presumption that is made heavier by the pressure exerted by agents on prosecutors. It is more effective to limit investigators than prosecutors. The other real tool of the administration, unmentioned in Holder’s speech, is contained in the text of the U.S. Constitution: The pardon power. The president can, and should, shorten the sentences of those who have been oversentenced for drug crimes. These commutations would have a direct effect on the prison population without presenting much risk to society."
Not much I can disagree with there. Get to it, Mr. Holder and President Obama.

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