5 Ways Eric Holder Helped Steer the Country Away From the War on Drugs

By Owen Poindexter 09/29/14

His run as attorney general was not mistake-free, but he shifted American drug policy for the better.

Eric Holder official portrait.jpg
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This article first appeared in AlterNet.

Eric Holder announced this week that he will resign as United States Attorney General, as soon as his replacement is nominated and confirmed. “Work remains to be done, but our list of accomplishments is real,” Holder said in his resignation speech, a statement which accurately summarizes his record on drug policy. While Holder has taken many positive steps, particularly on prison reform, he will leave the top post at the Department of Justice with an entirely unresolved discord between state and federal cannabis policy.

Two states have legalized marijuana, twenty-three have comprehensive medical cannabis laws, and a handful more have very limited laws that allow patients to use marijuana in very limited circumstances. Despite more than half the country having legally acknowledged weed’s medicinal power, pot is still a Schedule I drug, meaning the federal government classifies it as being abusive, criminal, and having no medicinal value. This designation, which marijuana shares with heroin, LSD, and peyote, among many others, stands in the way of sensible policy. Because the Drug Enforcement Agency (DEA) is part of the Department of Justice, Holder, as Attorney General, has the authority to reschedule (or deschedule) cannabis on his own. That he has not is a large blemish on a mostly positive record.

Despite this unfortunate omission, Holder made progress in moving the United States away from the expensive, needless, and inhumane War on Drugs. Here are Holder’s five best decisions regarding marijuana policy as America’s lawyer.

1. Overhauling mandatory minimum sentencing.

In August of 2013, Holder eased one of the most iconic and detrimental initiatives from the War on Drugs: mandatory minimum sentencing. These sentencing requirements, arbitrary and capricious from the start, kept thousands of low-level drug dealers locked up for a decade or more. Holder found a workaround to avoid triggering mandatory minimums by instructing prosecutors to not record the quantity of drugs found on dealers with no associations to gangs or cartels, and no corresponding firearm or violence charges.

"Too many Americans go to too many prisons for far too long and for no truly good law enforcement reason," Holder declared, while announcing the move. "We cannot simply prosecute or incarcerate our way to becoming a safer country.”

Under Holder, prison populations have finally started to decrease for the first time since Jimmy Carter was president.

2. Pursuing alternatives to incarceration.

As part of the same “Smart on Crime” initiative that included reforms of mandatory minimum sentences, Holder released guidelines on finding alternatives to prison for non-violent offenders. The Department of Justice endorsed rehabilitation over incarceration for non-violent criminals who were motivated or impaired by a drug problem. Additionally, Holder pushed for the compassionate release of sick and elderly prisoners.

Setting himself in contrast to the “Tough on Crime” initiatives that have dominated drug policies for ages, Holder’s Smart on Crime memos advocated for common sense policies that saved money, reduced recidivism, and freed people who were not a threat to society.

3. Retroactive sentence reduction for non-violent drug offenders.

Piggybacking off a ruling by the U.S. Sentencing Commission (an independent branch of the judiciary) to reduce sentences for non-violent drug offenses after November 1, 2014, Holder backed a retroactive ruling for people already in prison. Under Holder’s guidance, people in prison for drug offenses with no accompanying charges, such as unlawful gun possession or obstruction of justice, could apply for an early release.

"Under the department's proposal, if your offense was nonviolent, did not involve a weapon, and you do not have a significant criminal history, then you would be eligible to apply for a reduced sentence in accordance with the new rules approved by the commission in April," Holder explained.

Some reformers criticized Holder’s decision as being too limited, but it was still a positive step for prisoners, a population with practically no political capital.

4. Laying off Washington and Colorado.

This decision (or non-decision, if you prefer) was enormously consequential in advancing progressive cannabis policy. It was within Holder’s legal rights to crack down on the two Western states that voted to legalize marijuana for adults over 21 in 2012, but he chose to let their experiment in cannabis freedom play out. We have already seen tremendous social gains in these two states, from tax revenues and jobs related to cannabis to a number of positive indicators on social metrics. Now that these (largely predictable) results have played out, a handful of other states are considering full legalization, with Oregon and Alaska set to vote on ballot initiatives in November.

Holder’s decision to let Colorado and Washington proceed stands in contrast to how his department treated medical marijuana in the first years of his tenure. Holder failed to reign in DEA administrator Michele Leonhart, who kept pursuing medical marijuana, and raids on dispensaries actually increased in Obama’s first term.

Consider where we would be if Holder had taken a similarly hard line on Colorado and Washington, with federal agents periodically raiding cannabis businesses and arresting their proprietors as drug dealers. The glowing reports out of Colorado and Washington would be non-existent, and states like Oregon, Alaska, California, Vermont, Massachusetts and Maine, would be dissuaded from similar referenda to legalize cannabis. Holder’s decision here is a key reason that momentum toward ending cannabis prohibition is as strong as it has ever been.

5. Cleaning up the banking mess for cannabis businesses in Washington and Colorado.

Holder was quietly more than hands-off with the two states that legalized. A major—and to some degree, still present—concern for marijuana businesses in Colorado and Washington is finding banks that are willing to handle their money. Because cannabis is illegal federally, banks that handle funds from marijuana businesses could be accused of money laundering.

“There’s a public safety component to this,” Holder noted in January of this year. “Huge amounts of cash, substantial amounts of cash just kind of lying around with no place for it to be appropriately deposited, is something that would worry me, just from a law enforcement perspective.”

Shortly after, the Department of Justice and the Department of the Treasury released guidelines that prosecutors should not prioritize going after banks that deal with cannabis businesses, provided that those businesses stay within certain guidelines, such as not selling to minors. As a whole, this was a positive step, but the caveat that banks are only safe with cannabis businesses that follow certain regulations puts an unnecessary burden on the banks. Banks are equipped to assess a businesses financial solvency, but not their likelihood of being lax on specific regulations.

While Holder deserves ample praise for his work as the country’s top attorney, his record is not spotless. His term as Attorney General began with an increase in raids of medical marijuana facilities, which eventually cooled off. He announced in the weeks leading up to California’s 2010 vote on a ballot initiative to legalize marijuana that the federal government would enforce the law, regardless of the ballot outcome, throwing cold water on what was the most significant drug policy initiative of the time.

Some of his pro-reform initiatives could have gone further. For instance, his decision to allow low-level drug offenders to apply for an ahead-of-schedule release could have included a broader population. Holder took a positive step, but it was unnecessarily small. Similarly, in his memo regarding banks and cannabis businesses, Holder could have provided broader protections for banks, which would have benefited all parties involved.

The most significant misstep that Holder has made on drug policy is his decision to not reschedule or deschedule cannabis from its laughable Schedule I status. It’s worth noting that Holder told Katie Couric in an interview this week that “we need to ask ourselves” if marijuana’s Schedule I status is appropriate, which some took as a sign that he could still reschedule cannabis before he resigns as Attorney General. While Holder did seem to imply that it makes no sense to classify cannabis alongside heroin as a drug of abuse with no medicinal value, it seems optimistic that he would make such a dramatic move after announcing his resignation. Despite being one of the boldest reformers in the Obama Administration, there are certain steps that Holder was unwilling to take, despite their unambiguous prudence.

Eric Holder advanced sensible, progressive drug policies as Attorney General, but his performance still leaves room for improvement. Hopefully President Obama will select a replacement for Holder who is willing to use his or her authority to make common sense reforms, during this crucial period for cannabis policy.

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Owen Poindexter writes copy, op-eds, and speeches. He is a freelance journalsit whose work has appeared in Slate, the Huffington Post, Commonwealth, Salon, and many more. You can find Owen on Linkedin or follow him on Twitter.