Mirror of Justice

A blog dedicated to the development of Catholic legal theory.

Friday, August 16, 2013

The Return of Prosecutorial Discretion? Attorney General Holder and the War on Drugs

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.


Sisk, Greg | Permalink


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See too:

• Butler, Paul (2009) Let’s Get Free: A Hip-Hop Theory of Justice. New York: The New Press.
• Davis, Angela J. (2007) Arbitrary Justice: The Power of the American Prosecutor. New York: Oxford University Press.
• Freedman, Monroe H. “The Use of Unethical and Unconstitutional Practices and Policies by Prosecutors’ Offices” (February 26, 2012). Washburn Law Journal, 2012; Hofstra University Legal Studies Research Paper No. 12-06. Available at SSRN: http://ssrn.com/abstract=2017178
• The Justice Project. “Improving Prosecutorial Accountability: A Policy Review.” (2009) Available online as a PDF doc. via a Google search. This paper has an indispensable list of books and (especially) articles under “suggested reading.”
• Kadri, Sadakat (2005) The Trial: A History, from Socrates to O.J. Simpson. New York: Random House.
• Lawless, Joseph F. (3rd ed., 2003) Prosecutorial Misconduct. Charlottesville, VA: LexisNexis.
• Lippke, Richard L. (2011) The Ethics of Plea Bargaining. Oxford, UK: Oxford University Press.
• Medwed, Daniel S. (2012) Prosecution Complex: America’s Race to Convict and Its Impact on the Innocent. New York: New York University Press.
• Scheck, Barry, Peter Neufeld, and Jim Dwyer (2001) Actual Innocence: When Justice Goes Wrong and How to Fix It. New York: Signet.
• Stuntz, William J. (2011) The Collapse of American Criminal Justice. Cambridge, MA: Harvard University Press.

Posted by: Patrick S. O'Donnell | Aug 16, 2013 7:34:07 PM

"changes made by administrative fiat without approval by Congress"

People have explained how their actions here, with the overall intention of helping the long term security of a law intended to further health care including for the neediest out there (aside from a few applications, something the Catholic Church should find copacetic), is authorized and not "lawless."

Posted by: Joe | Aug 16, 2013 9:30:55 PM

Phew. As long as "[p]eople have explained" it....

Posted by: Anonymous | Aug 17, 2013 11:58:05 PM

As to the last comment, Prof. Adler at Volokh Conspiracy is a "conservative" (self-labeled) who takes the position of the author of the OP here and has had various posts at that blog on the matter. In response, various individuals, including "Anthony," has provided detailed replies explaining why the executive here is not breaching the law by doing what is done. I don't think an expansive discussion of the matter, which already is a passing bit in the OP, is appropriate here.

But, if the last comment is a serious one, I suggest going to that blog.

Posted by: Joe | Aug 22, 2013 12:11:38 AM