Outgoing US Attorney General Reflects on Justice System

The question is, are we prepared to [reform] to live up to who we say we are as a nation? . . .

It’s the morally right thing to do, and ultimately it saves us money in the long run.

Eric Holder, the outgoing United States Attorney General, recently gave an interview to members of The Marshall Project, an organization devoted to journalism about the failures of the American justice system. Holder highlighted successes, failures, and hopes for the future.

His comments on mass incarceration are illuminating.

We have 5 percent of the world’s population, [and] 25 percent of the people in incarceration. That’s not something that we can sustain. One third of the budget at the Justice Department now goes to the Bureau of Prisons, and if you look out to 2020, it goes up to 40, 45 percent or so. Which squeezes out the other things we want to do with regard to other areas of crime that we want to focus on, other initiatives that we want to support.

And then if you look at the impact that mass incarceration has . . . , it leads to broken families, it leads to social dysfunction, it tends to breed more crime. So – look, I’m a prosecutor first and foremost, and as a judge I put people in jail for extended periods of time when that was appropriate. Smart on Crime says if you commit violent crimes you should go to jail, and go to jail for extended periods of time. For people who are engaged in non-violent crimes – any crimes, for that matter – we are looking for sentences that are proportionate to the conduct that you engaged in.

Holder is optimistic that a version of the Smarter Sentencing Act will become law in the next Congress. That law proposes a number of changes to the federal criminal justice system, including, among other things:

  1. expanding the applicability of a "Safety Valve" provision (18 U.S.C. § 3553(f)), which overrides the mandatory minimum sentence in drug offenses for a small subset of defendants (low-level, first offenders in non-violent offense who cooperated with law enforcement);
  2. reducing the sentences of prisoners sentenced for crack-cocaine offenses before August 2010 to align with current (less harsh) sentences for such offenses;
  3. reducing mandatory minimums for certain drug offenses;
  4. directing U.S. Sentencing Commission to formulate lower recommended sentences so that the federal prison population will not exceed capacity;
  5. adding mandatory minimum sentences for certain offenses of aggravated sexual abuse and increasing penalties for certain domestic violence offenses; and
  6. adding mandatory minimum sentences for terrorism offenses.

According to Holder, "If this is done correctly you not only save money, you keep the American people safe by cutting down on the recidivism rate."

Holder then commented on the death penalty, saying that

I disagree . . . that we have never put to death an innocent person. It’s one of the reasons why I personally am opposed to the death penalty. We have the greatest judicial system in the world, but at the end of the day it’s made up of men and women making decisions, tough decisions. Men and women who are dedicated, but dedicated men and women can make mistakes. And I find it hard to believe that in our history that has not happened.

I think at some point, we will find a person who was put to death and who should not have been, who was not guilty of a crime.


These comments are enlightening, as Holder is not only the top federal prosecutor in the United States, but he was also a line-prosecutor and a judge. He has prosecuted people and companies, and has likely sentenced thousands of people to hundreds of thousands of years in prison in total. He then oversaw the entire United States justice system. And from that perch, he apparently gained a broad perspective of the ills of our system and a strong desire to reform it.

As is true throughout the nation, Raleigh federal criminal defense attorneys should be aware of Holder's policy positions, as they may be useful in negotiating current cases to achieve results that are in line with where our system is (hopefully) headed. With the top federal prosecutor lamenting long sentences for non-violent crimes, as well as the corresponding financial burden such sentences place on our country, Raleigh drug crime lawyers and Raleigh white collar defense lawyers should seek to weave these arguments into their discussions with prosecutors and presentations to judges.

It is also refreshing to hear a career prosecutor and judge being realistic about the death penalty and the likelihood that our system has erred in its use. This recognition--that our government has killed innocent citizens--is the first step toward the abolition of the death penalty, since one government-sponsored killing of an innocent citizen should be enough to dispense with the punishment altogether.