As Attorney General Eric Holder Jr. announced sweeping new sentencing policies last week, he once again called for a national conversation on racial equality, echoing a persistent theme throughout his career as a judge and prosecutor.
During an August 12 address to the American Bar Association, Holder advocated for an end to mandatory minimum sentences on some drug crimes and to reduce high incarceration rates that he called "both ineffective and unsustainable."
Holder described the system as "broken" and cited the significant economic burden of spending $80 billion per year, as of 2010, for prisons. But he also brought up Trayvon Martin, a Florida teenager who was never part of the prison problem but has come to signify, at least for the Obama administration, the need to address discrimination.
"As President Obama said last month, it's time to ask tough questions about how we can strengthen our communities, support young people and address the fact that young black and Latino men are disproportionately likely to become involved in our criminal justice system — as victims as well as perpetrators," Holder said.
The concerns that Holder, the first African-American attorney general, raised during the speech were not new to him, said Hilary Shelton, director of the NAACP's Washington Bureau. In 2009, Holder gave a controversial speech calling Americans "essentially a nation of cowards" for failing to face up to the country's racial problems. And he successfully pushed to end the disparity in the federal crack cocaine sentencing laws in 2010.
But now, in the midst of a second term, Holder's review of sentencing policies shows he remains focused on many of the criminal justice problems that organizations like the NAACP have been working to fix, Shelton said.
And some of the problems — the Martin verdict, the U.S. Supreme Court's recent decision negating a key section of the Voting Rights Act of 1965, and now harsh sentencing — have moved the conversation about race to the front pages again. "It is very heartening and laudable the attorney general would take on these issues," Shelton said. "We've seen others ignore them in the past. It's good he's taking a proactive approach to attack them."
Holder, in his ABA speech in San Francisco, cited one "deeply troubling report" that found black male offenders have received sentences nearly 20 percent longer than those imposed on white males convicted of similar crimes. He announced he had directed a group of U.S. attorneys to examine sentencing disparities and develop recommendations for addressing them. "We also must confront the reality that — once they're in that system — people of color often face harsher punishments than their peers," Holder said. "This isn't just unacceptable — it is shameful. It's unworthy of our great country, and our great legal tradition."
Other changes outlined by Holder include a new approach to mandatory minimum sentences for drug-related crimes and new guidelines for deciding when criminals should face state or federal charges.
Jamie Gorelick, a Wilmer Cutler Pickering Hale and Dorr partner who was one of the longest serving deputy attorneys general, called it a significant statement on federal enforcement policy.
'A SECOND LOOK '
"It coincides with a movement within the states, among federal judges, within the sentencing commission, to take a second look at policies that have been in place for a long time," she said. "This is a good moment for everyone to deal with that."It is a well thought-out statement to one of the most important audiences to which an attorney general can speak," Gorelick said, adding that former attorney general Janet Reno also reserved her important statements for the ABA audience. "So I think it is a very significant statement and commitment."
Covington & Burling partner James Garland, who served as Holder's deputy chief of staff for two years, said the move to fix racial disparity in the sentencing laws is one of the incremental steps Holder has taken during his entire career — from his time on the bench, as U.S. attorney for the District of Columbia and even in a 2010 memo giving prosecutors more discretion in charging.
It's something he's wanted to do since he became attorney general, and one of the issues that has motivated him the most, Garland said. "This speech is a very logical extension of what he's built his whole career around."
O'Melveny & Myers partner Mary Pat Brown, a former head of the criminal division in the U.S. attorney's office in Washington and top adviser to the Justice Department's criminal division, said this move represents a big policy change."For me, it would not surprise me if this were something of a moral issue for him," Brown said. "He has said publicly that equal justice has to be some sort of individualized justice. I think this is a way of demonstrating this equal justice."
And Laura Murphy, director of the ACLU Washington Legislative Office, said she expects this is just the beginning. "To have the nation's highest-ranking lawmaker I think artfully blend the values issues, the budgetary issues, the human toll and the racial injustice is just a big first," Murphy said.
Contact Todd Ruger at firstname.lastname@example.org.