Friday, August 16, 2013
The ABA Journal trumpets Attorney General Holder's announcement of a change in prosecutorial behavior toward those charged with drug crimes as a "Sweeping reversal of the War on Drugs" (here).
Rather than something new or novel, however, this simply heralds the return of something old and long-neglected: prosecutorial discretion.
As reported by the ABA Journal, speaking to the ABA House of Delegates, Mr. Holder addressed the problem of over-incarceration for non-violent offenses by outlining a new program:
The new "Smart on Crime" program will encourage U.S. attorneys to charge defendants only with crimes "for which the accompanying sentences are better suited to their individual conduct, rather than excessive prison terms more appropriate for violent criminals or drug kingpins," said Holder.
A few nay-sayers (see here) already have attacked the proposal as another example of the Obama Administration's overreaching in unilaterally revising laws with which it disagrees or aspects of which it finds inconvenient. But this episode is nothing like the more dubious actions of the administration in delaying the statutory deadlines for implementation of various aspects of Obamacare or specially excepting members of Congress and their staffs from being covered by the insurance exchanges in Obamacare as the statute requires -- changes made by administrative fiat without approval by Congress. (For George Will's cogent summary of the case against the administration on its lawlessness as to Obamacare, see here.)
No legal, moral, or professional obligation requires a prosecutor -- wielding the awesome power of government to subject a person to captivity -- to charge someone whenever a plausible case can be made that he or she has committed a crime, much less to seek the highest charge (with the highest attendant sentence) that the facts could support. Indeed, there was a time when a prosecutor, as a matter of wise discretion, would choose not to file a charge at all, when the circumstances were extenuating or a criminal solution was not in the best interests of all of those involved in an episode.
In other words, there was a time when the exercise of prosecutorial discretion fairly and impartially was thought to be essential to the promotion of justice (just as was the regular exercise of executive clemency to ameliorate the harshness of the law -- but the story of this administration's failure to exercise that power belongs to another day). (For a five-year-old Mirror of Justice posting on prosecutorial discretion, see here.)
Attorney General Holder is to be commended for taking this step as leader of the nation's federal prosecutors. And in doing so, he is supported by a broad and bipartisan coalition, including Senators Leahy and Durbin, on the Democratic side, and Senators Lee and Rand and former Attorney General Ed Meese, on the Republican side. While there will be (and already are) those who will castigate this move away from the past policy as a left-wing assault on law and order, a growing number of my fellow conservatives are awakening to the disaster of a policy that has made the United States the world leader in percentage of its citizens being held in custody.
I only wish that Attorney General Holder would apply this new ethos of prosecutorial discretion beyond the low-level drug offender -- and he need look no further than the 15-year sentence recently imposed on Edward Young of Kentucky, who had committed small-time property crimes, for inadvertently possessing seven shotgun shells that he found when helping the neighbor widow dispose of her husband's belongings. And that irrational charge and sentence was obtained by one of Mr. Holder's United States Attorneys. The Young case is now on appeal -- and so there is still time for the Justice Department to do the right thing in that case.
I'm also proud to say that my colleague here at the University of St. Thomas School of Law, Nekima Levy-Pounds, has long been one of those decrying prosecutorial overzealousness, mandatory minimum sentences, and the foolish, debilitating, and bankrupt policy of over-incarceration of young, non-violent offenders. In Professor Levy-Pounds's scholarly work, she has emphasized that current drug-sentencing practices disparately impacts poor women of color and children. For example, she reports that excessive incarceration of African-American women who had a peripheral role in drug offenses wreak havoc on the family and leave children parentless, setting the stage for the next generation of offenders and another cycle of incarceration. You can read her work here, here, and here. It is gratifying to see her work and that of so many other scholars, attorneys, and public officials of faith and compassion has borne fruit in the new federal prosecution policy.