Eric Holder, the Attorney General who brought us, among other things, the Fast and Furious gun-running debacle, along with its cover up, and a sneering rejection of Congress for finding him in contempt, has struck another blow against the rule of law. Holder has decided that he does not like the law that mandates minimum sentences for possession of small quantities of illegal drugs. As it happens, I do not think the law is a good one, either. There is a significant difference between Eric Holder and me, of course. Holder is the Attorney General of the United States and I am some law professor. But that difference should mean very little in regard to how these laws are treated and enforced. The Attorney General is appointed by the President for the purpose of helping him see that the laws are faithfully executed. He has no more right to change these laws than do you or I. Nonetheless, Holder has announced that he will no longer charge people under the laws he does not like for the crimes they have committed. Instead he will charge them with different crimes, not according to what they have done, but according to the punishment he, himself, deems proper.
Holder’s Smart on Crime program, announced at a meeting of the American Bar Association, will push federal prosecutors to charge defendants, not with the crimes they have committed, but with crimes “for which the accompanying sentences are better suited to their individual conduct.” As reported in a fawning story by ABA staff, ABA bigwigs hearing Holder’s announcement lived up to their reputation of sacrificing law to their particular policy preferences. A past chair of the ABA Section on Criminal Justice called the announcement “a welcome and much-needed response to serious problems of over-criminalization and over-incarceration.” ABA President Laurel G. Bellows enthused that the “changes outlined by Attorney General Holder today are welcome and much-needed steps toward bringing the federal system into line with smart, evidence-based policy that will better serve taxpayers and public safety.”
Policy preferences first, second, and third. The rule of law? Like our Constitution, it must “live and breathe”—meaning that lawyers with power must be able to do with the law as they will to achieve their policy preferences. Holder, of course, knows the score when it comes to the ABA and so emphasized the policy arguments and urged the ABA, as a “driver of positive change” to help him substitute the will of his office for the law of the land.
None of this is to say that it is only liberal lawyers in limousines who have supported an end to the war on drugs. For example, the “Right on Crime Coalition” has enlisted prominent Republicans such as former attorney general Ed Meese, former drug czar Bill Bennett, and former Speaker of the House Newt Gingrich in its campaign to provide more flexibility in sentencing those convicted of low-level drug offences.
And these folks on both sides of the political aisle certainly are correct that current law mandates punishments that are too severe (sometimes far, far too severe) for relatively minor, often first time offenders. Horror stories like that of a 19-year-old with no criminal record being sentenced to ten years in jail for merely being in a car in which drugs were found are far too common. Recognition of this problem, of the wasting of lives of people who did little wrong, denying society those persons’ potential contributions and the resources wasted by imprisoning them for so long, has led to a number of promising legislative initiatives. But they have not yet produced federal legislation. And legislation, in a constitutional republic governed by laws rather than presumptuous Attorneys General, is what is needed to change the law.
This is not to say that the executive branch of our government can do nothing to address injustices in the legal system. There always is room in the system for limited prosecutorial discretion. Prosecutors in this country always have had a limited right to forego prosecution and modify charges against defendants based on the particular circumstances involved. This, of course, is precisely the logic of any rational defense of Holder’s actions. Prosecutorial discretion also is a power that translates into unconstitutional lawmaking when it is used systematically, according to executive branch policies aimed at undermining the intent of Congress in enacting the legislation in question.
There is, of course, another executive branch power that is relevant, here: that of the President to grant pardons. Even those who have not paid enormous sums into the coffers of the President’s campaign or party, or into the pockets of powerful lobbyists, may be granted a Presidential pardon. They may be set free, even by a President who is not about to leave office. Yet this almost never happens in our country. Why not? Why does the President not use this great power, specifically granted by the Constitution, to redress clear injustices visited upon those without power?
Because it is too much trouble. There are too many people with too little power and money whose circumstances may or may not bring sympathy, and who may, frankly, commit another crime, embarrassing the President. Should this stop Holder’s boss from using his power? I think not. The time and trouble that have gone into undermining the current law, and the rule of law itself, might have been better spent finding people who clearly deserved mercy, than granting it to them, both for their own sake and to put pressure on Congress to change the law.
This option already has been put forward, and put into practice, for example, by President Wilson in response to injustices visited upon individuals under the Volstead Act (Prohibition). So it would not be unprecedented for the President to use his actual constitutional powers to mitigate injustice and work for legislative reform.
Sadly, this will not happen. Again, it is too difficult, and it is much easier to simply change the law by, in essence, executive branch decree. Unfortunately, because the “war on drugs” is currently unpopular, Holder will meet little opposition to his latest usurpation of legislative power. And this is what is truly troubling about his latest announcement. For, once again, the actual rules laid down by the Constitution are being ignored, even if not especially by the lawyers who should recognize the importance of the rule of law, in the interests of getting the policy we want, when we want it, by whatever means necessary. And this is not how a republic survives.
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