ABA Journal


Annual Meeting

Sweeping reversal of the War on Drugs announced by Atty General Holder

Aug 12, 2013, 06:44 pm CDT


Took long enough. Shouldn't have been dumb on crime in the first place.

By NoleLaw on 2013 08 12, 11:25 pm CDT

The substance of this seems well-considered enough, but it is far from ideal that they are doing it throught an exercise of executive fiat effectively repealing congressional enactments. Further, approached in this way, it doesn't do anything for all the similarly-situated defendants sitting in federal prison with no hope of probation.

By B. McLeod on 2013 08 12, 11:57 pm CDT

This would be a large shift in imprisonment in Arizona. Unfortunately this policy change was announced exactly a week too late to benefit my son's sentence, He has a 10.5 year prison term for a sales of well under the threshold amount. Hopefully this helps others out down the line. Something MUST change.

By Susan Rastella on 2013 08 13, 12:23 pm CDT

Which is a huge inequity in the policy, and one reason legislation is still necessary.

By B. McLeod on 2013 08 13, 12:32 pm CDT

Oh look, little Eric Holder is trying to do something positive for the people of the US for once! As if this will change anything...

By AntiGov on 2013 08 13, 4:03 pm CDT

If Holder approaches this in an objective, bipartisan fashion he will make progress on this initiative, including necessary changes in legislation, since there is strong support across the political spectrum.

On the other hand, if he tries to make this yet another political issue - - an us versus them sort of thing - - no progress will be made.

By Yankee on 2013 08 13, 4:19 pm CDT

@6 - I hope you're right, but I am afraid the reality might not be so positive. It is too easy for politicians (from both spectrums) to clamor about being tough on crime in order to gain votes. The results are predictable, with excessively punitive laws that tear communities apart and put an enormous strain on the taxpayer.

By NoleLaw on 2013 08 13, 5:22 pm CDT

He's lying. Want to know how I know? He's a liar. He opens his mouth and lies fall out. Absolutely no credibility, no integrity, or honor. How can anybody not laugh when this douche talks? He yaps about other peoples criminal problems, while he's a bigger criminal, and flaunts the law with impunity.

By joebanana on 2013 08 13, 8:23 pm CDT

@7 I know a lot of politically active conservatives and I don't know a single one who would not support a shift in drug policy along the lines of what Holder suggests. Indeed, there are proposals being advanced by ALEC and CATO that would complement what Holder proposes. All that is required is for groups who normally despise each other at a bone marrow to reach out to each other and work together in an issue where they are in violent agreement. How hard can that be?

By Yankee on 2013 08 13, 9:53 pm CDT

@9 - Hopefully not too hard. I know many conservatives, and you'd be surprised: on most questions of policy, we agree. The failure of the war on drugs is beyond ideological dispute; it is the (non-partisan) potential temptation to paint one's opponent as being soft on crime that could be the biggest hurdle to politicians pushing for real reform of our criminal laws.

By NoleLaw on 2013 08 13, 11:54 pm CDT

I agree with B. and the other commentators. This is a nice first step, but legislation is needed to fix the problems with sentencing and the war on drugs. This shouldn't be a left v. right issue, because both sides have reasons to support a change to the current system.

By Island Attorney on 2013 08 14, 1:07 am CDT

The "war on drugs" is a failed policy, as Prohibition was a failed policy. The economic and social cost of it has been staggering, and the objective of suppressing substance abuse has not been achieved. Forty years of failure is more than enough to show it is never going to work.

By B. McLeod on 2013 08 14, 6:42 am CDT

It's nice to hear that conservatives and the rest of us may be capable of agreeing on something. I'm still skeptical about the House that lets extremists call the shots.

By DB on 2013 08 14, 1:08 pm CDT

DB: Your use of the term "extremists" is curious, since it has always been my sense that it has been the 'mushy middle' on the political spectrum, both Rs and Ds alike, who have traditionally been most supportive of the current drug policy.
Ironically, the CATO and ALEC types, who are routinely tagged as "extremists" by the political left in so many other policy contexts - - because they think rigorously about policy and aren't afraid to challenge the status quo or conventional wisdom - - have been pressing for changes in drug policy for years.

The reason I mention this is not to start a finger pointing/us-versus-them type of debate on this board, but rather to suggest that a bipartisan proposal to reform drug policy would necessarily draw out those who may continue to support in good faith current drug policy. I personally can imagine a consensus approach emerging from a respectful and thoughtful debate between reformers and those who for whatever reason support the status quo.

There is no reason that I can see (and maybe I am missing something) that drug policy should necessarily be a political wedge issue, unless somebody sees a political advantage in making it one.

By Yankee on 2013 08 14, 4:04 pm CDT

@Yankee - perhaps the simplest explanation for why this could turn into a political war is that it requires both sides to say "hey, you're right!" to an opponent. This seems to be dismally hard for them.

I hope your optimism is rewarded and the two sides can work together on something that should be easy to agree on. Respectful debate left our politics years ago, however, and I wouldn't be terrifically surprised to see this spiral into a finger pointing, yelling mess about where the line should be drawn.

By RecentGrad on 2013 08 14, 9:09 pm CDT

Actually, what each side must say to the other side here is: "I'm right . . . and i guess you are too."

Not that it is my way to quibble, of course . . .

By Yankee on 2013 08 14, 9:17 pm CDT

Sweeping? This is minor tinkering.

Why are the Feds intruding on states that legalize marijuana? That's not being changed.

Why wait until now? They've been in office for five years.

The ABA is patting itself and the administration on the back for nothing.

By Warren Redlich on 2013 08 16, 10:50 am CDT

Constitutional separation of powers is an outdated concept that only inbred conservatives still support.

By associate on 2013 08 16, 12:01 pm CDT

I am waiting for the administration to take a consistent approach and not fill our jails with individuals incarcerated for being in possession of a firearm, even though it was never used in a violent crime (NY, CT, CA, IL - I'm talking to you too). I wish I could say that the administration recognizes that drugs, firearms or alcohol can be used for good AND evil purposes, and that it's about employing personal responsibility rather than the strong arm of government to coerce based on mere possession and trade.

Injury or deaths associated with drug use are now seldom splashed on the front page of the New York Times, in part because it's no longer a useful political tool. Politicans, along with their dance partners in the media, will continue to use trajedy for political gain when it serves their political interests (e.g. Sandy Hook, Zimmerman, etc.). Yet when someone is shoved onto the subway rails by psychofrenic self-medicating with cocaine, that's relegated to the regional section for a day, and then forgotten. It's not about human lives lost - it's about capitalizing on the loss.

In reality, Eric Holder has not become a libertarian. He recognizes that our jails exceed capacity and the court's have begun to intervene (which intrudes on executive power - oh my!). Further, this is more bread and circus stuff: liberalize drug laws to curry political points from the millenials who are angry about persistent unemployment and still living with mom - and need a "release" without fear of the feds knocking down the door (ironically, armed with military style weapons).

By CT Lawyer on 2013 08 16, 12:25 pm CDT

Do we really need more legislation?

Serious question: Could the same thing have been accomplished by repealing the federal laws (or the sections of it) that gave rise to what the federal government seeks to correct; thereby returning power to the states and their already "locally-tailored" laws?

By No Half Assin' on 2013 08 16, 1:47 pm CDT

Assuming the ABA drones gave him a standing ovation, and it is BS. Only around 5 percent of drug crimes are federa; almost all are local. This was nothing but political theatre -- draw attention away from DOJ's general corruption and the administration's scandals and play to the Dem base as part of the 2014 and 2016 campaigns. Basically saying USA's can withhold evidence from the court. If our clients did that, they would be prosecuted. Glad to see the ABA is all for upholding the rule of law and separation of powers vs. endorsing the administration's selective enforcement of laws on political grounds. Good job ABA, just like when you helped provide cover to Lois Lerner and the IRS (thanks also in part to Morgan Lewis).

By BJJT on 2013 08 16, 1:55 pm CDT

This is not by any stretch of the imagination a "sweeping reversal"....see the post (linked at bottom) on the volokh conspiracy. Here's an excerpt discussing the actual new guidelines:

Here are the relevant guidelines:

n cases involving the applicability of Title 21 minimum sentences involving drug type and quantity, prosecutors should decline to charge the quantity necessary to trigger a mandatory minimum sentence if the defendant meets each of the following criteria:

* The defendant’s relevant conduct does not involve the use of violence, the credible threat of violence, the possession of a
weapon, the trafficking of drugs to or with minors, or the death or serious bodily injury of any person;

* The defendant is not an organizer, leader, manager, or supervisor of others within a criminal organization;

* The defendant does not have significant ties to large-scale drug-trafficking organizations, gangs, or cartels; and

* The defendant does not have a significant criminal history. A significant criminal history will normally be evidenced by three or more criminal history points but may involve fewer or greater depending on the nature of any prior convictions.

These four exceptions are both vague and broad. They don’t explain what qualifies as a “large-scale drug-trafficking organization, gangs, or cartel,” or what it means to have “significant” ties to such, or how much evidence is needed to prove any of this. Jacob Sullum suggests that ” Many marijuana dealers and pretty much all cocaine and heroin dealers arguably would fail that test,” and he’s probably right.

Here's the post:

By Ga Lawyer on 2013 08 16, 2:11 pm CDT

Just started reading "The Racketeer" by Grisham - great story with over-criminalization and over-sentencing in the background.

By redwood on 2013 08 16, 2:22 pm CDT

@ 19 (CT Lawyer)

It is disheartening that your observations are neither noted nor shared by more voters. Not endorsing any particular set of politics. Perhaps the society around us would take a different shape and/or relate to each other differently if the reasoning that belies the considerations you pointed out were part of more people's common sense.

At times it seems that what was once a counter-culture is now the establishment.

By Red Solo Cup on 2013 08 16, 2:52 pm CDT

As a state prosecutor in Arizona, this announcement will change nothing. The AUSA's already decline to charge the "small" drug cases (like 200+ lbs of marijuana and 3+ lbs of meth) which the federal agents seize at federal ports of entry into the country. What Mr. Holder is saying, is that he is finally telling his attorneys to do what they have already been doing. This was a political maneuver. Here is a link to the NDAA response.

If the link does not work, go to and the story is on the home page.

By AZ Prosecutor on 2013 08 16, 3:36 pm CDT

Wow the privatized prison industry is really bumming on this one. They liked making 70k per year per inmate, whether the person was caught for a gram of weed or a mass murderer.

And in other news, Reagan continues to fail.

By You call this coffee!? on 2013 08 16, 4:06 pm CDT

The real answer here is to get rid of mandatory minimum sentencing, and allow federal judges to exercise the discretion for which they were appointed. Most of the federal judges I have met over my 40 years of practice are thoughtful, intelligent people trying to excel at a difficult job. If we trust them with a lifetime appointment to get everything else right (and have appellate courts to correct the errors), why don't we trust them to sentence individual defendants correctly based on facts?

By RetiredLawyer on 2013 08 16, 5:30 pm CDT

For those calling the war on drugs a failure, that is true, but only in the way that it has been waged. We only truly attack the supply side. If the demand side had real, true deterrent-level penalties attached, the suppliers would not have as many people to supply, the money would not be so great, and the supply would dwindle to a more manageable level along with the demand. What if state and federal benefits were tied to a clean record, clean drug tests, etc? Would real penalties deter some folks from using in the first instance? Would repeat violators warrant real jail sentences since we are supporting them and their kids anyway? Would that incentivise rehab and deter recidivisism? Yes, judges need more discretion in mandatory minimum sentences, but, if we really want to have an effect on the illicit and highly damaging use of drugs, we have to be as tough on the user as the dealer.

Studies show if you can keep a kid from drinking before age 21, their chance of becoming an alcoholic are dramatically decreased. Same for drug use. The vogue in substance abuse policy and studies right now (for a number of years now) is that we need to hit 4 prongs, Prevention, Early Intervention, Treatment, and Recovery. Our country only commits real dollars to the last two. Like it or not, our prevention messages (this is your brain, this is your brain on drugs) tested out as failures. Thus, our only real prevention and early intervention are basically fear of arrest, and acutal arrest/incarceration/criminal record. Our policy of simple possession slaps-on-the-wrist completely undermine this. I'm not calling for more harsh jail sentences for first offense, or even second offense, but if you tie benefits and other things to the penalties, and do look at tough jail sentences for those who stay addicted and are dependent on crime or the system to live anyway, it is the same expenditure, so throw the book at them. Hit the demand side with a real, focused, thought out approach, and we might see less families torn apart by addiction, and children raised in the environments doomed to the same cycle of failure in most cases.

By Buckeye in WV on 2013 08 16, 5:49 pm CDT

"Sweeping reversal," oh hahaha, that's a good one. Still, I suppose it's a start. Glad to see Holder agreeing with Sen. Rand Paul. But, just wait until the military-prison-industrial-pharmaceutical complex hears the news. The War on Drugs might finally be starting to wind down -- Halleleuia! -- but mark my words, the propaganda war is just beginning.

By Just Some Bloke on 2013 08 16, 6:27 pm CDT

Do I understand correctly that the AG of the United States is directed his staff to ignore the laws Congress wrote and charge people with the crimes they wish they had committed instead of the crimes they actually committed? That seems worrisome, and I'm not sure why an ABA that believes itself champions of a Constitutional republic and the rule of law would applaud it.

@18 - Perhaps. Certainly the post-New-Deal Presidency is more powerful than the monarchy whose yoke this country threw off in the name of individual liberty and local self-determination. Is it the lesson of history that no matter how framed, every society eventually slouches into the same tyranny?

By PenguinAdLitem on 2013 08 16, 6:55 pm CDT

Congressfolk of rural areas, where the prisons and jails are mostly located, will vehemently oppose this. Because corrections institutions are significant employers, and more importantly, major campaign contributors. The privatization of prisons is the biggest problem and largest source of inertia against criminal reform: locking up as many people as possible, for as long as possible, has become a fiduciary duty for prison corporations.

That is why you have "cash for kids" scandals like the one in Pennsylvania, why "3 strikes" absurdities persist, and mandatory minimums are unlikely to be changed legislatively. Get the money out of campaigns, or the corporations out of prisons, then something more permanent and meaningful has a chance.

By Voice of Reason on 2013 08 16, 8:06 pm CDT

The War on Drugs was just another Reagan failure.

By Doodle Dandy on 2013 08 16, 10:35 pm CDT

Goes back at least as far as Nixon.

By B. McLeod on 2013 08 16, 10:42 pm CDT

A good editorial in the August 17, 2013 edition of The Economist - - - "An Unlikely Alliance of Left and Right" - - - which puts Holders speech in the larger context of reforms that Governor Perry began in the State of Texas a decade ago, and efforts by members of Congress of both parties to address this issue. As I noted in my earlier comments, this is an issue that if you think about transcends normal Left-Right politics:

By Yankee on 2013 08 17, 2:51 pm CDT

Fine, it was another massive Republican failure.

By Doodle Dandy on 2013 08 18, 2:07 am CDT

Comment removed by moderator.

By Buckeye in WV on 2013 08 19, 5:21 pm CDT

War on Drugs???? Don't they mean "Game On Drugs"? It is a shame that so many people have been incarcerated for so long when the government never got serious about the drug problem.

By az atty on 2013 08 21, 8:10 pm CDT

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