American Bar Association / ABA, Conferences / Symposia, Crime, Drugs, Eric Holder, Minority Issues, Racism, Sentencing Law

Eric Holder Preaches To The Choir At ABA: It’s Nice When Lawyers Think People Will Listen To Them About Laws

I didn’t go to Eric Holder’s big speech at the ABA annual meeting on Monday. I kind of halfheartedly tried to go, but there were a lot of people who wanted to see Holder say something they could’ve read about online hours earlier.

If the ABA had invited Secretary of Education Arne Duncan over to speak about the horrendous abuse of federal funds by purveyors of higher education, I’d have smashed my way in. But in the crush of people trying to get a look at the Attorney General trying to dismantle a big part of the United States “War On Drugs,” I was reminded that regulating legal education is a small part of what the ABA does — and a part that isn’t of great institutional importance to the organization. The ABA wants a seat at the policy table when it comes to big sexy issues of justice and legal services. Preventing member institutions from price-gouging young people doesn’t get its logo splashed across all the major news networks.

So, Eric Holder delivered a big policy address. And later, by which point I was on a plane, Hillary Clinton spoke about how she’ll be speaking about other things as she doesn’t run for president just yet. Holder! Hillary! Marvel at the ABA’s relevance in national policy debates!

Except, they’re not relevant. Holder did make an important speech on Monday, and he couldn’t have found a more supportive group for his take-down of mandatory minimums had he been speaking to potheads in Golden Gate Park. But really, the ABA isn’t going to be any more helpful when it comes to actually convincing Congress than a meeting of the 4:20 club…

Holder’s speech attacked the fundamental unfairness of harsh sentences for minor drug offenses. From the Huffington Post:

“When applied indiscriminately, [mandatory minimums] do not serve public safety. They –- and some of the enforcement priorities we have set –- have had a destabilizing effect on particular communities, largely poor and of color. And, applied inappropriately, they are ultimately counterproductive,” Holder said.

Federal prosecutors “cannot –- and should not –- bring every case or charge every defendant who stands accused of violating federal law,” Holder said in a speech, drawing applause from the crowd. He referred to the U.S. prison population as “outsized and unnecessarily large.”…

He also noted that sentences are often racially disproportionate, referencing a February report indicating that, in recent years, black male offenders have received sentences nearly 20 percent longer than white offenders convicted of similar crimes.

“This is not just unacceptable,” Holder said. “It’s shameful.”

Yeah, the thing is, federal prosecutors already don’t bring every case and charge every defendant who violates federal drug laws. They use their discretion… when a white person gets caught in the net. Remember, part of the thought behind mandatory minimums was that predominately white prosecutors and white judges couldn’t be trusted to use their discretion evenly when confronted with a white defendant versus a minority.

But mandatory minimums have quite clearly exacerbated that problem instead of correcting it. And it seems like just about every lawyer who has tangled with the minimums sees the problem. Judges want more discretion in sentencing, prosecutors want more discretion in charging and deal-making, defense attorneys want more options to keep their clients out of jail for non-violent offenses, civil rights attorneys would like their clients to be treated like the white guy down the hall, and civil liberties attorneys (both on the left and the right) don’t want people to go to jail for “victimless” crimes. If there was an attorney at the ABA who was in favor of mandatory minimums, I did not meet her. If I had met her, I would have bought her a joint, which I’m almost positive they sell at the 7-Elevens in San Francisco if you ask nicely and don’t seem like a NARC.

Holder’s speech at the ABA could have been subtitled: “I Trust You Guys, I’m Going To Make It Easier For You To Do Your Jobs.”

Of course, telling lawyers they should have more power over the application of laws doubles as saying: “Congress, you don’t know what the f**k you’re talking about.” From the San Francisco Chronicle:

But support was not universal. House Judiciary Committee Chairman Bob Goodlatte, R-Va., said Holder “cannot unilaterally ignore the laws or the limits on his executive powers. While the attorney general has the ability to use prosecutorial discretion in individual cases, that authority does not extend to entire categories of people.”

Sen. Chuck Grassley of Iowa, top Republican on the Senate Judiciary Committee, said whether the law needs to be changed should be decided by the Congress, along with the president.

“Instead we’re seeing the president attempt to run roughshod over the direct representatives of the people elected to write the laws,” Grassley said. “The overreach by the administration to unilaterally decide which laws to enforce and which laws to ignore is a disturbing trend.”

Hahaha. Sorry, that’s funny to me, ’cause Congress is all about unilaterally deciding which laws (Obamacare) to ignore.

But this is an article about the ABA and here’s the point about this Holder/ABA circle-jerk: If the ABA really wants a seat at the table on the policy issues of the day, then it needs to learn how to lobby Congress effectively on the big issues. Right now, the ABA is as structurally ineffective at lobbying as it is at its other functions.

The ABA changes its president every year — which is dumb. This year, it’s James R. Silkenat’s turn in the big chair. He succeeds Laurel Bellows, who succeeded William T. Robinson III — who told students they should sell their cars to pay for law school. Next year, Silkenat will be succeeded by William Hubbard. That’s right, they’ve already voted on Silkenat’s successor, who will take over after the annual meeting in 2014. That means that the ABA has set itself up as an organization which is perpetually run by a lame-duck president.

That’s not how the NRA does it. No credible lobbying organization has this kind of institutionalized turnover. By rotating out the chiefs, the ABA frustrates any chance of having a long-term vision or plan. And that’s fine, if you think of the ABA as just a loosely associated professional guild whose only function is to keep barriers to entry high. But you can see why this organizational structure is a poor way to effectively lobby government. Silkenat says he wants to work with Congress on sensible gun regulation and background checks, which is a nice thought, but why in the hell would Congress want to work with him? The man’s term will be over BEFORE the midterm elections. I’ll have better luck lobbying Congress to get Four Loko back on the market than this guy will getting an elected official to return his phone calls.

If the ABA wants to be taken seriously in Washington on issues like mandatory minimums, then it has to act seriously about its own operation. Otherwise, it’s nothing more than an applause track when adults want to deliver a stump speech to an easy room.

Eric Holder: ‘Broken’ Justice System Needs ‘Sweeping’ Changes, Reforms To Mandatory Minimum [Huffington Post]
Holder goes after mandatory federal drug sentences [San Francisco Chronicle]

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