Judge Gray: Where is the Substance, Mr. Holder?

The Functional Libertarian
August 22, 2013

First of all, let me be clear: virtually all of us in the drug policy and prison sentencing reform movements applaud U.S. Attorney General Eric H. Holder, Jr.’s comments this past August 12 at the American Bar Association meeting in San Francisco. This was the first time within memory that a high-ranking federal official has stated the obvious: that we have far too many people in prison in the United States, and that we should re-think our sentencing laws.

As this column has mentioned several times, the United States has 5 percent of the world’s population, but 25 percent of its prisoners. As former US Senator Jim Webb of Virginia was quoted on the front page of Parade Magazine as saying when facing these statistics: “Either we are the most evil people in the world, or we are doing something wrong.” It’s good to know that our present Attorney General feels that we are not an evil people.

But, after giving him that praise, we really must note the many ambiguities in his speech. For example, he said that we should modify our sentencing policies only for people who have “no ties to large-scale organizations, gangs or cartels.” Who decides who qualifies, and how can these “guidelines” be enforced? Hard-charging prosecutors have used their powers to over-charge defendants for years, thus coercing them to plead guilty to reduced offenses. How will Holder’s guidelines change that reality?

In addition, and as Holder says, about one-half of all federal prisoners are serving time for drug offenses emanating from, what he rightfully labeled, the “so-called War on Drugs.” But as long as there is a market for illicit drugs, someone will provide them, and make obscene amounts of money along the way. So until that reality is addressed, we will continue to fill our prisons all around the country with drug offenders.

Along those same lines, why did Mr. Holder not use the opportunity to announce his support to completely remove the sentencing disparity between powder and crack cocaine, which has resulted in many people of color serving disparately long sentences? A few years ago the disparity was reduced from about 20 times to one to five times to one, but why not remove it all the way? And why did he also not come out in support of the bill presently pending in Congress to keep the federal government from interfering with people who are in compliance with their state’s marijuana laws? Both of those measures would certainly reduce the numbers of people filling our state and federal prisons.

Furthermore, where was the substance in his comments? Mr. Holder said that the criminal justice is in too many respects “broken.” But he is the leader of this system, and he has been in office for 4 ½ years! Why just give speeches, when he is in the position to have made substantive changes?

For example, what bills did he say the Obama administration would be submitting to Congress to repeal or at least significantly modify mandatory minimum sentences? There are 93 United States Attorneys in the nation, and their charging authority will only really be changed by statutes, not by Mr. Holder’s guidelines.

And, even more importantly, where are the comments about highly increased efforts to issue clemency to those people who are now serving unnecessarily-long prison sentences? Yes, people must be held accountable for their actions, but even Mr. Holder acknowledged that some of the sentences that were required to be given under our present laws are “both ineffective and unsustainable.” The U.S. Constitution gives his boss, President Obama, the authority, at the stroke of a pen, to modify some of those sentences right now. Why has this power not been exercised, or at least a neutral commission established by Mr. Holder to make recommendations to the president’s pardons attorney?

By way of comparison, President Nixon granted 60 commutations of federal sentences out of 892 applications he received during his 67 months in office, for an average of 7 percent. But President Obama has granted only one commutation out of more than 8,100 applications he has received during his first 55 months in office, for an average of 0.01 percent.

These are critically important issues, particularly since if the federal government actually goes beyond issuing Mr. Holder’s guidelines and instead implements specific changes, that will provide the political cover for public officials in many states to follow suit. And if Mr. Holder himself needs political cover, I belong to a speaker’s group called LEAP, which stands for Law Enforcement Against Prohibition. Our thousands of members consist of present and former judges, prosecutors, chiefs of police, DEA agents and more. We can give him all of the political cover he requires.

And there is a huge need, because today there are literally hundreds of thousands of people in our country’s prisons who simply should not be there. For example, the largest “mental health facility” in most counties around the country is actually the county jail. Imagine the unnecessary harm caused to these mentally fragile people by being locked up for such things as illegal camping or self-medicating on illicit drugs.

In addition, some prisoners are truly elderly and infirm men and women who have already served decades on their sentences. In their prisons there are ramps instead of stairs, seats in the shower stalls and ground-up food being served because they can’t digest normal fare. And most of them couldn’t hurt you if they wanted to because they don’t have the strength even to throw their walkers at you.

So unless these geriatrics have an aggravated past, like Charles Manson, the Boston Strangler, or the Night Stalker Richard Ramirez (who, appropriately enough, just recently died in prison), many of them should be released outright, if only to save expenses to the taxpayers. Why? Because, depending upon the facility, it costs taxpayers about $35,000 per year to keep one prisoner in custody, unless they are sick or elderly, where the cost can easily be $100,000 or more. Even if we actually wanted to keep all of these people locked up, at this point we simply cannot afford it!

And, finally, just ponder this for a moment. What if you were required to spend ten years of your life in prison? Can you imagine spending that much of your precious life wasting behind bars? Or, even worse, how about if you had to spend an extra ten years because of a mandatory minimum sentence requirement? Yes, long sentences are appropriate for those sociopaths who see all of us as their legitimate prey. But, otherwise, sentences like that further no purpose except providing job security to the members of the prison guards unions.

So these are things that Attorney General Holder could have addressed – and acted upon. Yes, his words were a good thing and well received. But so far, after his years in office, all we have at this point is words.

James P. Gray is a retired judge of the Orange County Superior Court, the author of “Wearing the Robe: the Art and Responsibilities of Judging in Today’s Courts” (Square One Press, 2009), and the 2012 Libertarian candidate for Vice President, along with Governor Gary Johnson as the candidate for President. Judge Gray can be contacted at [email protected].