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United States Attorney General Eric Holder in May.

Eric Holder on His Legacy, His Regrets, and His Feelings About the Death Penalty

An interview with the outgoing attorney general.

Bill Keller and Tim Golden of The Marshall Project spoke with Holder in Brooklyn, where he was visiting a widely praised drug court. The transcript has been edited for length and clarity.

The Marshall Project: You’ve been pretty outspoken on criminal justice issues across the board – more outspoken than your boss, actually. What would you single out as your proudest accomplishment in the area of the criminal justice system, and what would you single out as your biggest disappointment?

Holder: In January 2013 I told the people in the Justice Department after the re-election that I wanted to focus on reforming the federal criminal justice system. I made an announcement in August of that year in San Francisco, when we rolled out the Smart on Crime initiative. It was a way of breaking some really entrenched thinking and asking prosecutors, investigators, the bureaucracy – to think about how we do our jobs in a different way – to ask the question of whether excessively long prison sentences for nonviolent offenders really served any good purpose, how we used enhancement papers1, moving discretion to prosecutors and asking them to make individualized determinations about what they should do in cases, as opposed to have some big policy sent to them from Washington.

enhancement papers1 Enhancement papers recommend a harsher sentence based on the defendant’s prior record. In 2010 Holder overturned a Bush-era policy that prosecutors should seek enhancement whenever possible.

And I think that by and large – not without opposition, to be totally honest – the federal system has embraced that vision. And I think that we have started to see the kind of changes that I hoped we would see.

And the biggest disappointment?

I’m proud of the fact that – in 2010, I guess – we reduced that ratio, the crack-powder ratio2, from 100-to-1 to about 17- or 18-to-1. I’m still disappointed that, given the lack of a pharmacological distinction between crack and cocaine, the ratio is not 1-to-1. You know, it was the product of a lot of hard work that the president was intimately involved in. But I think he would agree with me that that number should be at 1-to-1.

crack-powder ratio2Crack cocaine offenders, who are disproportionately black, are subject to much more severe penalties than powder cocaine offenders, who are more likely to be white.

Before the second term is over, could there be a push for a 1-to-1 ratio?

That is something that I know the president believes in, that I believe in. One of the things that I’d like to see happen before the end of this administration is that there would be a drug court3 in every district in this country. As I speak to my successor, the 83rd attorney general4, and as I speak to the president, I’m going to push them to make that a goal for this administration, to have a drug court in every district by the end of Barack Obama’s second term.

drug court3Drug courts are an alternative to criminal courts for suspects whose main problem is addiction. On the day of the interview Holder was visiting a drug court.

the 83rd attorney general4President Obama has nominated Brooklyn federal prosecutor Loretta Lynch to succeed Holder.
Holder at a meeting of the American Bar Association in August 2013, where he announced plans for changes in drug sentencing policies.

Holder at a meeting of the American Bar Association in August 2013, where he announced plans for changes in drug sentencing policies.

While we’re on the subject of drugs, a lot of people, including your choice to be the head of the Civil Rights Division, have pointed out that marijuana accounts for an awful lot of the excessive incarceration in this country, and a fair amount of the disproportionate numbers of African-Americans who are in that system. You’ve held back from calling for marijuana decriminalization. What holds you back?

I think the question of how these drugs get scheduled and how they are ultimately treated is something for Congress to work on. I think we’ve pushed. We have done an awful lot. You look at what’s going on now in Colorado and Washington5 and the way we’ve dealt with those initiatives, identifying the eight priority areas6 that we thought still would warrant federal involvement, and yet if you look at where we are now with those states and with what other states are doing, and the way we view the whole issue of the use of medical marijuana, we’re in a fundamentally different place than we were when Barack Obama became president and I became attorney general.

Colorado and Washington5Since the interview, Oregon, Alaska and the District of Columbia voted to legalize recreational use of marijuana.

eight priority areas6After the two states legalized marijuana, Justice did not sue to challenge the states, but directed its attorneys to focus enforcement on eight areas, including preventing distribution to minors, preventing diversion to states that still outlaw pot, and preventing drugged driving.

So I think we’ve made significant progress in looking at that drug in a more realistic way. But I think our society has to ask itself the question of how ultimately we are going to view the use of marijuana.

Are you saying that you and the president can’t afford to get too far ahead of public opinion on this?

The enforcement policies that this administration has undertaken, in its decision not to sue, for example, in Colorado – not to try to preempt those laws in Colorado and Washington – really shows leadership. And it took guts for the president to do what he did, what we did together. So I don’t think it’s a question of following public opinion. I think that we have taken leadership positions.

What we have learned through other huge societal changes is that we can lead, we can point the way, but society has to come along. I can think of a couple of different areas where I don’t think that was done, where we sought to impose things. And I think that has led to controversy where, if given a little more time, society would have gotten to a better place.

Would you predict that the ultimate outcome of this evolution on marijuana is that it’s decriminalized?

I certainly think that you’re going to see decriminalization efforts be more widespread around the country. I’m not sure exactly where it will ultimately end up. And I’m not sure what we see in Colorado and Washington are necessarily predictions of the future.

Mass incarceration is one of the very few areas in today’s policy world where there actually is some common ground between right and left. When you have Cory Booker and Rand Paul cosponsoring legislation7, and Newt Gingrich and Rick Perry adding these issues to their agenda – how significant is that?

legislation7Their bill would lift the ban on food stamps and welfare for low-level drug offenders, encourage states that try juveniles as adults to raise the age to 18, and restrict use of solitary confinement for children.

It’s both jaw-dropping and heart-warming to see that an issue that is that important can get people from such disparate political views together. To think that you can have Rick Perry, Eric Holder, Rand Paul, Newt Gingrich, Dick Durbin, Patrick Leahy all essentially agreeing – there might be some disagreement about approaches on the fringes – with the basic notion that mass incarceration is not financially sustainable and also is not just, not fair. To get some of the most conservative members of the Republican Party agreeing with the Democratic Black Caucus is something that bodes well for what I think needs to happen in this country.

We have 5 percent of the world’s population, 25 percent of the people in incarceration. That’s not something that we can sustain. One third of the budget at the Justice Department now goes to the Bureau of Prisons, and if you look out to 2020, it goes up to 40, 45 percent or so. Which squeezes out the other things we want to do with regard to other areas of crime that we want to focus on, other initiatives that we want to support.

And then if you look at the impact that mass incarceration has on communities from which these people are extracted, it leads to broken families, it leads to social dysfunction, it tends to breed more crime. So – look, I’m a prosecutor first and foremost, and as a judge I put people in jail for extended periods of time when that was appropriate. Smart on Crime says if you commit violent crimes you should go to jail, and go to jail for extended periods of time. For people who are engaged in non-violent crimes – any crimes, for that matter – we are looking for sentences that are proportionate to the conduct that you engaged in.

Have you reached out to any of these figures on the right? Personally?

Oh, yeah. We had lunch with Rand Paul. I’ve had breakfast with some of my more interesting adversaries in Judiciary hearings – Trey Gowdy, Jason Chaffetz8. We had these kinds of conversations where I think there was a growing realization that we have to change things. You know, this war on drugs that we’ve been involved in for 30, 35 years…. We have not considered all the collateral impacts of the war on drugs, and I think people are now prepared to do that, and not tar the people who are asking these questions with being “soft on crime.” It doesn’t have that political resonance that it once did, so I think people are willing to step up and take some changes to do what they believe, and I believe, is the right thing.

Trey Gowdy, Jason Chaffetz8Republican congressmen from South Carolina and Utah.

Given all that, why hasn’t the Smarter Sentencing Act9 become law?

I think it was – and I want to say “was” – a victim of the dysfunction, the gridlock in Washington D.C., where a lot of good ideas go to die. After the election, next year, I’m actually optimistic that a version of that act will become law. I think the stars are kind of lined up.

Smarter Sentencing Act9The bill would reduce mandatory minimum sentences for low-level drug offenses.

Looking at the realignment10 process in California and other experiments that are out there in reducing incarceration, do you worry at all about the danger of a race to the bottom, in which states and counties are much more eager to get people out of prison and stop paying for it than they are to pay for the housing and social services that will assure a lower crime rate in the future?

realignment10California is under a Supreme Court order to reduce prison crowding. The process is called realignment.

If this is done correctly you not only save money, you keep the American people safe by cutting down on the recidivism rate.

But this cannot be seen as simply something that is cost-saving, because that would potentially lead to states’ doing exactly what you say: racing to the bottom, and just trying to push people out of prison.

I think people who have responsibility for the criminal justice systems around the country understand that if you do that you’re really only putting people out for some short period of time before they ultimately come back. So there has to be a greater emphasis on rehabilitation while people are in prison, and then reentry efforts to prepare them to exit prison.

Did you notice, or have any reaction to, the news that the Koch brothers11 recently donated money to the National Association of Criminal Defense Lawyers to help support indigent defense?

Koch brothers11Charles G. and David H. Koch, billionaire industrialists and prominent funders of conservative causes.

I was not aware of that. That’s a good thing to hear – people from very different places along the ideological spectrum understanding that we have to make our criminal justice system more fair. It’s about 51 years or so after Gideon12, and there are way too many people on the civil side, as well as the criminal side, who don’t have their legal needs met. There’s a justice gap. And to hear that the Koch brothers would be contributing money in that way is something that I think should be applauded.

Gideon12Gideon v. Wainwright, a landmark 1963 Supreme Court ruling, required states to provide lawyers for defendants unable to afford counsel.
Holder with President Obama after announcing his resignation in September.

Holder with President Obama after announcing his resignation in September.

I was at a conference not long ago with some U.S. attorneys who were upbraided by one of the federal defenders who said, we’re doing all kinds of innovative stuff and coming up with new programs and bearing a disproportionate share of the responsibility for solving these problems. But we’re way underfunded, and you, the Justice Department, could be doing a whole lot more to help us. Why aren’t you?

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We are. The Access to Justice Initiative has not only been something that has shared best practices. We have, to the extent that we could, funded different ideas around the country, tried to raise the consciousness of various states, usually through their court systems, to fund indigent defense. So, yeah, we understand that there is a financial component to this, there is a resource component to this issue. The people who work for me, assistant U.S. attorneys in many of our offices, have caseloads that are way too large, but, boy, you look at the average public defender, and the amount of time that they are allowed to spend with a client before they have to enter into a courtroom and try to zealously defend that person – those caseloads are just, well, they’re just unbearable. Just unbearable. That is something that we have to fix. I think in some ways, that’s the ultimate test.

The question will be, are we prepared to spend money, to live up to who we say we are as a nation? Are we going to live up to Gideon, one of the great Supreme Court cases of all time, and give money for the defense of people who are charged with crimes? That, I think, is going to be difficult. But I think again, there is a growing consensus that it’s the right thing to do for a whole bunch of reasons. It’s the morally right thing to do, and ultimately it saves us money in the long run.

How do you feel about the privatization of prisons, prison services, post-prison services like parole? Is that a good thing?

You know, I suppose it can be done well. But I am a person who believes that that’s essentially a state function, a government function. I think it’s done best by well-funded, well-led governmental entities. That’s just where I come from.

The country has been moving away a little bit from privatization on the prison side, but now there is a new burst of business from the surge in immigration detention going to private companies, some of which have rather checkered pasts. Are you comfortable with that?

No, I’m not. I’m concerned about what I hear about, documented cases that have been presented to me about the way in which people who are in the system for immigration reasons – as opposed to drug selling or violent crime – and the way in which people are treated, the conditions under which they are held. That is, I think, extremely troublesome. It points to the need for comprehensive immigration reform. This is another place where we are going to look in the mirror and ask ourselves, who are we as a nation? Are we prepared to devote governmental resources to that issue? And that is quintessentially something for the government to do. There can be a place for the private sector to help in that regard, but I think government must lead in that area.

The Obama administration came in advocating transparency in the business of the federal government. Why hasn’t the Justice Department gotten involved in litigation in Oklahoma, Missouri, Florida and elsewhere involving transparency as it relates to lethal injection drugs? You’ve got all these states going to enormous lengths to keep secret the nature of the drugs they use. You guys have stayed out of those cases even when the states have tried to keep that information from judges.

What the president has asked me to do is to review the death penalty. Among the things we’re looking at are the protocols that we use. There’s essentially been a moratorium in the federal system, and given the issues that we have around these questions of drugs, where you get them, it will be interesting to see how that moratorium ultimately resolves itself.

This is something the president has asked me to look at. My hope is to have a report on his desk before I leave as attorney general, both with regard to the protocols and the policy behind the death penalty, or the use of the death penalty.

I think that the issue is made real when you look at some of the things that have happened in the states over the last year or so, where you had these botched executions, where you had an inability to get the appropriate drugs. We’ve had doctors unwilling to participate in the process. I think this is pushing this country toward some really fundamental questions about – even though, you know, people still support the death penalty by 55 percent, or whatever the number is13 – some fundamental questions about continued use of the death penalty.

whatever the number is13Recent polls range from mid-50’s to low 60’s in support.

There was an execution that was just stayed by the Supreme Court in Missouri, that had to do in part with a case in which a defendant missed the deadline for filing a habeas claim in federal court14. That deadline came from the 1996 Antiterrorism and Effective Death Penalty Act. You were around when that came into being. Is that part of the array of issues that you’re looking at?”

missed the deadline for filing a habeas claim in federal court14Defendants have one year to file a federal appeal after exhausting their appeals at the state level. For a closer look at the consequences when lawyers miss this deadline, see Ken Armstrong's investigative report.

Yeah, I would think so. When you’re talking about the ultimate penalty, when you’re talking about the state taking someone’s life, there has to be a great deal of flexibility within the system to deal with things like deadlines. There is always a need for finality in the system, that is a good thing. But there has to be enough flexibility so that you can look at the substance of a claim, especially when the death penalty is at stake. If you rely on process to deny what could be a substantive claim, I worry about where that will lead us.

I disagree very much with Justice Scalia’s15 certitude that we have never put to death an innocent person. It’s one of the reasons why I personally am opposed to the death penalty. We have the greatest judicial system in the world, but at the end of the day it’s made up of men and women making decisions, tough decisions. Men and women who are dedicated, but dedicated men and women can make mistakes. And I find it hard to believe that in our history that has not happened.

Justice Scalia’s15In 2006 Justice Antonin Scalia wrote that if any innocent person had been put to death, we would know it because the name would be “shouted from the rooftops” by abolitionists. Several condemned convicts have been exonerated while on death row, and serious doubts have been raised about at least two men who were executed in recent years, Cameron Todd Willingham and Carlos DeLuna.

I think at some point, we will find a person who was put to death and who should not have been, who was not guilty of a crime.

This article has 2 letters to the editor. Read the letters.