One Small Step For Eric Holder

[ Posted Monday, August 12th, 2013 – 16:26 UTC ]

Just so no one makes the accusation that I'm belittling Attorney General Eric Holder's speech today; if my headline were longer, it would conclude: "...and one giant leap for the Department of Justice." Holder's speech today, and his new policy announcements and proposals, are indeed a significant leap forward for the federal government, which -- ever since Nancy Reagan and the tragic death of Len Bias -- has been locking people up for drug offenses at a rate unparalleled in American history. What Holder said today was that it's time for this outdated, expensive, and largely futile policy to end, or at least be severely curtailed. And that, indeed, is a giant rhetorical and philosophical leap forward.

But (you just knew there was going to be one, didn't you?) while Holder can be applauded for directly addressing a significant subject and proposing sweeping reforms, what struck me were two things: a related story in the news today, and the things Holder's speech didn't address. On both, for the time being, Holder can be given the benefit of the doubt -- but only if he subsequently fills in the gaps in his new policy announcement by addressing them in a timely fashion.

The related news story related how prosecutors are coming up with creative new ways to impose even longer prison sentences on low-level drug dealers, and the omissions in Holder's speech all had to do with the changing attitudes and state laws on marijuana. Before I begin, one caveat -- I have not yet read a transcript of Holder's speech, but promise to do so soon. Perhaps there were subjects in it that the mainstream media ignored or missed, to put this another way. Again, I want to give Holder the benefit of any possible doubt, here.

Holder's main points in his speech are pretty irrefutable, and his proposed solutions for fixing problems seem to be well-considered and possibly quite effective. Others are concentrating on the content of Holder's proposals, and hopefully this debate will continue into the future. But what had me scratching my head was reading two stories in my local newspaper today. The first was a preview of Holder's speech, containing the major points he was going to make and the major proposals he was going to suggest. Juxtaposed with this was another story, which seemed to be completely contradictory at first glance.

The story was reported by the Associated Press, and begins:

With the number of heroin overdoses skyrocketing nationwide, a growing number of law enforcement agencies are dusting off strict, rarely used drug laws, changing investigatory techniques and relying on technology to prosecute drug dealers for causing overdose deaths.

It goes on to detail this "aggressive change in tactics," such as:

Rather than going after lower-level users of heroin, prosecutors are looking to take out dealers and members of the supply chain by connecting them and the drugs they sold to overdose deaths and charging them with laws that carry stiff penalties.

One prosecutor was quoted stating: "We're going to be ruthless," and: "We're looking for long-term prison sentences."

Obviously, this runs completely counter to what Eric Holder said today. Prosecutors looking for creative new ways to impose longer and longer prison sentences for street dealers would undermine Holder's new policy suggestions, to put it mildly.

To be scrupulously fair to Holder, however, it bears pointing out that this AP article was written before Holder gave his speech, and that two of the four prosecutors quoted (including the quotes above) are state-level officials and therefore have nothing to do with the federal Department of Justice. They're beyond Holder's control, to put this another way. However, the other two prosecutors the article quotes are "Kerry Harvey, the U.S. attorney for eastern Kentucky," and "Kathleen Bickers, an assistant U.S. attorney in Oregon," both of whom are definitely on Holder's payroll. Both spoke approvingly of stricter penalties for dealers after a user dies of an overdose.

At first glance, this policy would seem to make some degree of sense. Community outrage after a drug overdose death is stronger than after just a possession bust (again, see: Len Bias). The dealer had some degree of culpability, it can be argued, just as a tavern owner bears responsibility when he lets a patron get blind drunk who then kills someone while driving home. But it could also be argued that the liquor store who sells a bottle of hooch to a sober patron bears no responsibility when that patron takes the booze elsewhere, and then drinks it, drives drunk, and kills someone. Legally, the concept of responsibility would be iffy to begin with, it seems.

Legal arguments aside (and again giving Holder the benefit of the doubt), perhaps these two federal prosecutors will soon be getting a memo from the boss in the home office which will instruct them to use their time and resources with different priorities than they now appear to be doing. Perhaps this news article will turn out to be "a good bad example" of what is wrong with the Justice Department's current approach to drug policy, to put it as optimistically as possible.

But the real elephant in the room Holder did not mention today was marijuana, and the public's changing attitudes towards the War On Weed. When Eric Holder took office, thirteen states out of fifty -- over one-fourth of the country -- had legalized marijuana for medicinal use. Since he's been in office, seven additional states have done so (Arizona, New Jersey, Delaware, Connecticut, Massachusetts, New Hampshire, and Illinois, as well as Washington D.C.). This means that a full forty percent of all states have now legalized medical marijuana -- well over one-third of them, and closing in on one-half. Two states (Colorado and Washington) legalized marijuana for recreational use by adults over nine months ago, and yet the Justice Department is still "studying" the issue and hasn't indicated what the federal reaction will be.

Early on in President Obama's first term, a memo was released by the Justice Department to instruct federal prosecutors what the policy on medical marijuana should be. It essentially said that if people were following their state's laws to the letter, then the feds should back off and not bother with arrests or prosecutions (even though federal law trumps state law). This was consistent with promises President Obama had made on the campaign trail, in fact. Two years in, a second memo was released which did a complete about-face. Federal prosecutors were told they should feel free to crack down on marijuana even in states with medicinal laws, and even for people who were following the letter of those laws. The results have been predictable: new and inventive ways to harass people -- including landlords, banks, newspapers, sheriffs' departments, state attorneys general, and anyone else they could think of on the periphery -- who were only attempting to live their lives under their state's laws and implement them in a rational fashion. This second memo has never been rescinded, and remains the operative instructions for U.S. attorneys in the field.

But with Washington and Colorado approaching full implementation of a legal marketplace for marijuana -- from producer to seller to consumer -- the Justice Department faces a deadline to let the voters of those two states know how it is going to react. So far, as noted, they haven't said a word on the subject. Sooner or later, one assumes, a third memo is going to appear.

So while Attorney General Eric Holder certainly made news today, and while he appears ready to take some large steps forward on bringing some much-needed sanity to federal drug policy, one speech is merely a starting point. Further steps are needed -- both concrete steps from the Justice Department itself and policy suggestions for Congress to consider. The first of these should involve Holder addressing that counterproductive news story which ran alongside the buildup to today's speech. Some intrepid reporter needs to direct a query to the Justice Department which asks them about the contradiction to Holder's speech of prosecutors salivating over longer and harsher sentences for low-level drug dealers.

Secondly, while Holder rolls out his new policy ideas via departmental memos and suggested changes to the laws, sooner or later he's going to have to address the marijuana issues -- both medicinal and recreational. Changing the mandatory minimum policies and striving to avoid imprisonment for low-level drug crimes are both admirable policies for Holder to implement. It is, in fact, historic that he is even making this attempt at a sea-change in policies enacted in the "Just Say No" 1980s. For the first time since then, a Democrat is willing to risk the "soft on crime" label Republicans have used so effectively over the past three decades, to interject some common sense into the debate. That is admirable indeed, and to be lauded.

But it's only the first step. More are needed. The voters in forty percent of the states (and in Colorado and Washington in particular) deserve it.

-- Chris Weigant


Cross-posted at The Huffington Post

Follow Chris on Twitter: @ChrisWeigant


5 Comments on “One Small Step For Eric Holder”

  1. [1] 
    Michale wrote:

    Obviously, this runs completely counter to what Eric Holder said today. Prosecutors looking for creative new ways to impose longer and longer prison sentences for street dealers would undermine Holder's new policy suggestions, to put it mildly.

    Maybe, with my background, I am reading too much into it..

    But, what I take away from what your wrote is that, in the case of death of a user, prosecutors are going to go after the supply chain for murder..

    Now, I really don't have a problem with that and I am surprised that anyone would...

    Basically, what the prosecutors are saying is that, if you sell drugs and your drugs can be tied to the death of your users, then you are going down for murder..

    Again, I don't have a problem with that whatsoever...

    Both spoke approvingly of stricter penalties for dealers after a user dies of an overdose.

    Good! Those are the kinds of prosecutors we need..

  2. [2] 
    Michale wrote:

    But it could also be argued that the liquor store who sells a bottle of hooch to a sober patron bears no responsibility when that patron takes the booze elsewhere, and then drinks it, drives drunk, and kills someone. Legally, the concept of responsibility would be iffy to begin with, it seems.

    What about the gun store that sells guns to a mother, whose mentally deficient son takes those guns and shoots up an elementary school??

  3. [3] 
    Michale wrote:

    The difference between your "hooch" example and my "guns" example is that it is perfectly legal to sell guns and hooch to authorized people..

    The same can not be said for selling heroin..

    To put your "hooch" example in the proper context of selling heroin, it would be as if the liquor store owner sold hooch to someone he knew was under 21 and that person drank it elsewhere, drove and killed him/herself or someone else...

    In that case, the store owner would (or SHOULD) definitely be held liable...

    Just as drug dealers should...

  4. [4] 
    Chris Weigant wrote:

    OK, Michale, you have engaged the issue in a forthright manner, so allow me to respond likewise...

    Your example of guns is a relevant one, but forgive me if I'm going to ignore it. Parallels do indeed exist in the two cases, but it muddies the waters of the debate, I feel. Let's concentrate on the liquor store owner instead.

    Not to blow your mind or anything, but what if heroin were legal? What if you could walk into the pharmacy of your choice and order up a dose of heroin, and receive a product you knew was chemically pure and of a stated strength, so no accidental overdose was possible?

    I realize that's a radical concept, but it was also the way America operated for over half of its history. A dose of heroin might have run you 5 cents at the turn of the 20th century. Like I said, mind-blowing, but even you would have to admit that it would completely remove the profit motive from the drug industry (both legal and illegal) when it was so cheap.

    So -- positing this world where there were no laws against selling pure heroin -- again, of a known quantity, strength, and purity -- would the seller of such a drug be held responsible if the user intentionally used it to overdose? Why, or why not? (see your own gun example, as a thought exercise)

    Two things to consider. One, I feel it would be impossible to hold a liquor store owner responsible if a completely sober patron came in and bought a few half-gallons of booze, and then either (1) intentionally drank him or herself to death, or (2) got so blind drunk they drove and killed a pedestrian. The concept of "responsibility" seems to have ended for the store owner, in either case -- thus meaning the law should not charge them with anything.

    Now, of course, a tavern owner who keeps serving a patron while they get drunker and drunker would be a different thing, legally, if they drove and killed a pedestrian afterwards. Differing amounts of responsibility, being the server of the alcohol in question.

    But, to return to my list: Two, almost all overdoses in America today fall into three categories: (1) a new user, who doesn't know what the heck they're doing, (2) impurities (poison) in the product sold (heroin sold on the street can be anywhere from 5% pure to maybe 20 or 30% pure, the rest is any crap which looks like the same white powder), or (3) a user getting a much-stronger purity than they are used to -- if they're used to 5% and they suddenly score 25%, they're going to think they're taking a safe dose and in fact kill themselves.

    So, in which of these should the dealer be held responsible -- in my world where heroin is legal? In other words, treat it like a liquor store owner of today. In instance (1), perhaps. Instructions and dosage should be provided, as with any prescription drug today, and if that information is false or not provided, then maybe the seller is legally liable. In instance (2), definitely. Not much "bathtub gin" is sold today, and anyone who sells moonshine which is nothing more than wood alcohol should be prosecuted to the fullest extent of the law for not providing a clean and safe product. I'd even agree that murder or at the very least reckless endangerment charges would apply.

    But instance (3) -- the largest instance of overdoses today (look it up) -- would simply not exist if heroin were sold by pharmacies. Purity would be right on the label. Everyone would know exactly what they were getting.

    Here's a better subject to look up: "laudanum". Before the early 20th century, this was how most people took opium. Oh, sure, there was the exotic nature of "opium dens" and the Chinese, but when most people went down to their pharmacist (or apothecary, if you want to go back that far), they just bought a bottle of laudanum. Over-the-counter, I might add -- no prescription necessary. Was this a problem? Well, in some ways. Like the Rolling Stones immortal "Mother's Little Helper," many housewives (and many others in society, to be fair) became addicts.

    Here's the key difference: were these housewives thrown in jail? No, they were not. Were the pharmacists thrown in jail? No, they were not. Did the federal government spend trillions of dollars to stamp the problem out? No, they did not. Did the housewives commit crimes to feed their habit? No, they did not -- because it was safe, pure, and cheaply available to them, therefore they did not have to commit property crimes to support their habit.

    OK, so this has been a screed. Sorry about that. I'm not arguing here for the immediate legalization of heroin or morphine or any other opiate (although Ron and Rand Paul might...). But I am trying to get you to see that the world of the "War On (Some) Drugs" we live in today is not the only world that has ever existed.

    If your logic were applied to the alcohol industry, then beer barons would be fine, but any distiller of high-proof hooch would be in jeopardy of being charged at any time with various manslaughter or murder charges. And that just doesn't seem like the way to go, for me.

    If Holder is serious, then he needs to address the problem of Draconian charges for low-level dealers which some US Attorneys seem to be using these days. Because otherwise, the whole thing is just an exercise in hypocrisy, it seems.

    OK. End rant.


  5. [5] 
    Michale wrote:

    Your example of guns is a relevant one, but forgive me if I'm going to ignore it. Parallels do indeed exist in the two cases, but it muddies the waters of the debate, I feel. Let's concentrate on the liquor store owner instead.

    Fair enough.. Consider yourself forgiven.. :D

    I was going to address your comments one by one, as I am wont to do, but I get the jist of your overall theme/question.

    What if the drugs were legal??

    Mind-blowing aside... :D It would negate my entire argument..

    At least, my initial argument. The follow-up argument on the liquor store owner illegally selling hooch to someone would become dead on..

    If it were legal to sell heroin, then the "dealers" should not be held liable for any deaths that occurred, all things being equal. By that, I mean, if there was some negligence in preparation or what have you..

    To sum it up, it's the law of the land that, if you are committing an illegal act and someone dies during the commission, you can (and SHOULD) be charged with murder, even if you personally had nothing to do with the act...

    Many examples of this exists in jurisprudence in the here and now...

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