On Monday, Attorney General Eric Holder appeared before the annual American Bar Association conference and gave a striking speech that has been widely reported and largely praised. Holder powerfully described America’s problem with overincarceration, saying that “widespread incarceration at the federal, state and local levels is both ineffective and unsustainable.” As a response, he described a handful of policy changes, including new charging directives at the federal level.
Holder was exactly right about the scope and nature of our troubling levels of incarceration, which too often have little to do with limiting crime. However, his cure is unlikely to have much of an impact. This is largely due to three myths built into his presentation.
The first myth is that directives from Main Justice are of primary importance at the ground level, where discretion is actually employed by assistant U.S. attorneys. Holder’s principle reform was a memo to federal prosecutors directing them to begin charging certain low-level narcotics cases in a way that would avoid mandatory minimum sentences required by federal statutes. The myth here is that such directives necessarily have a substantial impact on what prosecutors actually do.
The truth is 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. In fact, many if not most of the cases Holder described in his new directive already are subject to a “safety valve” provision that allows prosecutors to avoid these same mandatory minimum provisions — if they are so inclined. These disparities will continue, because the prosecutors in both places are trained advocates who know how to position a case so that it will or will not be subject to this new directive.
At any rate, prosecutors everywhere use mandatory minimums to pressure low-level defendants to flip and provide information on others, and that is unlikely to change. Once the threat to use a mandatory minimum sentence is made, it must be carried out to maintain credibility, regardless of any directive from Main Justice.
The second myth built into Holder’s speech is 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.
Finally, Holder’s speech was premised on the myth that the executive branch’s primary tool in addressing the incarceration binge is guiding the discretion of prosecutors. This ignores two tools that would be much more direct and effective. 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.
Repurposing agents and using clemency would be bold moves consistent with the boldness Eric Holder used to describe the scope of our incarceration problem. My hope is that in its second term this administration will move beyond myths and address the realities of both narcotics crime and our overstuffed prisons.
Mark Osler is a law professor at the University of St. Thomas and a former federal prosecutor.