Eric Holder May Have Just Made One Of the Biggest Decisions in U.S. History


On Monday, Attorney General Eric Holder announced that the Justice Department will stop imposing mandatory minimum prison sentences on a number of non-violent drug offenders.

As he explained in a prepared statement:

"I have mandated a modification of the Justice Department's charging policies so that certain low-level, nonviolent drug offenders who have no ties to large-scale organizations, gangs, or cartels, will no longer be charged with offenses that impose draconian mandatory minimum sentences."

Given that the United States imprisons a higher percentage of its population than any other large country, and that most of these incarcerations are the product of the harsh anti-drug laws passed by Presidents Ronald Reagan, George H. W. Bush, and Bill Clinton, the Obama administration's new policy makes a great deal of practical and moral sense. Indeed, with Colorado and Washington legalizing recreational cannibis use last November and popular health pundit like Dr. Sanjay Gupta recently reversing his stance on medical marijuana, Holder's order seems less like a bold advance in favor of drug liberalization than it does a recognition of our society's shifting sensibilities on drug policy.

This is unfortunate, because if ever there was a potential political lightning rod just waiting to receive its first electric jolt, it's this one.

By way of historical analogy, let us look at Prohibition. For decades a diverse coalition of special interests could be found demanding the abolition of alcohol in America, from evangelical Protestant organizations that focused on the moral aspects of the issue to women's groups which viewed it as a matter of protecting our domestic life. After being advocated for nearly a century, the so-called temperance movement triumphed in 1919, first with the ratification of the Eighteenth Amendment and then with the passage of the Volstead Act for its enforcement. To some observers, it seemed that America had used the letter of the law to forever stamp liquor out of our national life.

A little more than a decade later, however, that law was repealed.

It is easy enough to understand why by looking at the havoc wreaked by Prohibition itself. Instead of reducing crime, it caused a spike in criminality, as perhaps most prominently embodied by the career of notorious gangland leader Al Capone. Similarly, instead of eliminating alcoholism from our public life, it simply forced it underground, with even avowed Prohibitionists like President Warren Harding sneaking liquor whenever the opportunity presented itself. By any reasonable measure, Prohibition was an abysmal failure, one that cost taxpayers millions while falling far short of its own professed goals.

At the same time, even a failed law can remain in place if the body politic lacks the will to remove it. The persistence of marijuana prohibition, and the continuation of what Holder rightly described as "draconian" mandatory minimum sentences for other illicit substances, is proof of that. While the obvious shortcomings of Prohibition were instrumental in its eventual overturning, the process was further facilitated by the fact that national political leaders heard and heeded the call of larger social movements devoted to legalizing alcohol again. From Alfred Smith, the progressive New York governor who served as the Democratic Party's presidential candidate in 1928 (as well as the first Catholic to ever be nominated by a major party for the presidency), to Franklin Roosevelt himself, it took the support of people at the top to lend legitimacy to the clamoring of the grassroots movements supporting civil liberty ... and, ultimately, to effect their will.

While the Obama administration's recent actions are no doubt a step in the right direction, it is unfortunate that he has yet to seize the opportunity to position himself in a Rooseveltian position on the issue of the drug wars. No doubt this is because of obvious differences between Prohibition and our current drug policies, from the financial stakes involved (with the prison-industrial complex today being far more powerful than its Prohibition era antecedent) to the respective political movements advocating repeal (with the anti-Prohibitionists being far better organized and coordinated than their Drug War-era counterparts today). At the same time, a true leader isn't someone who waits for fortuitous conditions before planting the seeds of progress, but is bold enough to take whatever cultivation measures he can in order to create and ultimately reap a meaningful harvest. That's why, as I heard Holder's statement, I found myself wishing for something closer to what Franklin Roosevelt said when explaining his opposition to Prohibition during the 1932 presidential election. After describing the "complete and tragic failure" of Prohibition as consisting of "encouragement of lawlessness ... corruption, hypocrisy, crime and disorder" and "the spread of intemperance," he went on to point out that the failure "came of very good reason," to whit:

"We have depended too largely upon the power of governmental action instead of recognizing that the authority of the home and that of the churches in these matters is the fundamental force on which we must build. The recent recognition of this fact by the present Administration is an amazing piece of hindsight. There are others who have had foresight. A friend showed me recently an unpublished letter of Henry Clay, written a hundred years ago. In this letter Clay said that the movement for temperance 'has done great good and will continue to do more' but 'it will destroy itself whenever it resorts to coercion or mixes in the politics of the country.'

"Another statesman, given to the Nation by this State of New Jersey, pointed out this necessary course when Federal Prohibition first became a great issue. President Wilson foresaw the economic and social results of such an attempt. It was not necessary for him to live through the disastrous experience in order to come to the conclusion now confessed by our present President. In statesmanship an ounce of foresight is better than a pound of hindsight."

One can only hope that Obama will further utilize the foresight that revealed itself, albeit in its most nascent form, in Attorney General Holder's actions today. If so, there is indeed a chance that he will elevate himself to the level of statesmanship on this issue.