Tuesday, April 29, 2014

Holder Signals Changes Coming to Criminal Law

On April 9, 2014, Attorney General Eric H. Holder, Jr. spoke at the Annual Convention for the National Action Network (NAN), a civil rights organization founded by Reverend Al Sharpton.  Holder began by honoring Dr. Martin Luther King, Jr., who was killed on April 4, 1968, almost exactly forty six years from the date of the convention.  Holder acknowledged that Dr. King dedicated his life to building a more just society and left us with a charge to “confront the challenges of our time.”  Holder praised NAN for their work, and for advancing “the cause of justice that has always been at the center of [the Obama] Administration’s work.”  Thus, Holder seemingly proposed “justice” as the foundation of Obama’s criminal policy, and compared the goals of the Administration to those of Dr. King.

Holder proceeded to describe the Administration’s accomplishments since he became Attorney General in 2009, including challenging laws that could restrict certain populations’ ability to vote in the wake of Shelby County v. Holder, filing a record number of criminal civil rights cases, and ensuring quality legal representation to the indigent and impoverished, in line with the charge of Gideon v. Wainwright.

Holder then shifted the focus from past achievements to future goals with the following words:

In so many ways, today’s Department of Justice is renewing its obligations to deliver fair outcomes and ensure due process for everyone in this country – no matter who they are, where they are from, or how much they make.  But we’re also asking larger questions about the mechanisms of the criminal justice system as a whole. And, where appropriate, we’re exploring ways to recalibrate this system to make it as fair and effective as possible.

As it stands – in far too many places – a vicious cycle of poverty, criminality, and incarceration traps individuals, devastates families, and weakens communities.  It is long past time for us to break this cycle.[1]

With these words, Holder indicated changes need to and would be made to the nation’s criminal law and policy.  He highlighted four areas that were being reformed or soon would be reformed, including: federal drug sentencing; prisoner reentry; racial profiling; and sentencing disparities.  Regarding sentencing, defendants found guilty of certain non-violent federal drug crimes would receive customized sentences instead of harsh mandatory minimums.  The main goal of this change is to reduce the nation’s prison population, and, in fact, it began with Holder’s 2013 “Smart on Crime” initiative.  Holder also claimed the Administration has invested in drug treatment and reentry programs for prisoners, in an effort to reduce recidivism.  Furthermore, Holder promised that the Justice Department would do everything in its power to combat racial profiling and sentencing disparities, both of which have a disproportionately negative effect on non-White Americans.

These changes, according to Holder, would work to ensure “our most solemn responsibility” of guaranteeing equality under the law, without compromising the “impartial and aggressive enforcement of the nation’s laws.”

While Holder did not explicitly mention other changes in this speech to NAN, he has indicated similar reforms in the same spirit as those presented above at other engagements.  In a speech at the Georgetown University Law Center earlier this year, Holder charged states to repeal laws barring felons from voting after their prison release.  Similar to the customized sentencing for non-violent drug offenders, Holder recently expressed that the White House is willing to considering clemency applications of prisoners sentenced under the old, harsher regime who are serving longer sentences than they would be, had they been sentenced now.  In fact, the Department of Justice on April 23, 2014 issued a press release announcing criteria it will consider when reviewing federal inmates’ clemency applications.

Obviously, criminal practitioners need to be on high alert for these potential reforms, as the changes could affect virtually every aspect of criminal law.  It is easy to see how such integral elements of lawyering – like client counseling, plea bargaining, and trial strategy – would change.  For example, as mentioned above, the Obama Administration has already made changes to non-violent drug crime sentencing and the criteria for clemency applications, which have obvious ramifications for defense attorneys and their clients.  In a more specific example, the U.S. Sentencing Commission voted to adjust the drug quantity table down two levels, which, absent Congressional interference, will take effect November 1, 2014.  FD.org recommends practitioners use the vote to argue for a variance or continuance, and Holder instructed prosecutors not to object.

The judge’s role also would change, especially in regard to sentencing, because judges would not be bound by mandatory minimums and would have the discretion to ensure the punishment fits the crime in certain non-violent drug cases.  Furthermore, Holder’s determination to end sentencing disparities and racial profiling means practitioners must be ready to adapt to changes in police policy and practice.  These reforms, for the most part, advantage defense attorneys, which means prosecutors must be as familiar with the policies as their counterparts and even more adaptable to new procedures and strategies. 

Holder’s dedication to justice and equality under the law likely is welcome by those who share his views on America’s “broken” criminal justice system.  While it is unclear whether Holder and the Administration can deliver on the promise of change and reform, practitioners must keep abreast of action by entities like the Department of Justice and the U.S. Sentencing Commission and be ready to adjust and reshape how they strategize, counsel, advocate, try cases, and negotiate.

James K. Howard
Senior Editor, Criminal Law Practitioner

[1] This rhetoric echoed an August 2013 speech Holder gave before the American Bar Association, in which he called the justice system “broken” and in need of “sweeping, systemic changes.”


  1. Some of the goals sought by Holder, the balancing of sentences to fit the crime, elimination of racial profiling and reducing prison populations are, indeed, admirable. As usual, however, Holder forgets two things: the victim and fighting gang violence. While a 2-time felon walks from prison and gets to vote (I wonder for which party) there may be a victim or two somewhere suffering from a drive by, bystander shooting or someone's warped sense of gang justice. I don't hear Holder or Sharpton, for that matter, standing up in highly photo op sessions decrying gangs and their drug dealing and violence. Sadly, most of the victims are African Americans too. Where's their justice?

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