The Legacy of Eric Holder

The Legacy of Eric Holder

By Ellen Sousares 10/13/14

Despite a tumultuous tenure as the nation's Attorney General he leaves behind a legacy of progressive action toward reforming the criminal justice system and reversing the deleterious repercussions of a failed war on drugs.

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After six years of service, Eric Holder Jr., the nation’s first African American Attorney General, with one of the longest recorded tenures for this position, announced his resignation in September.  

Despite a tumultuous tenure, facing criticism bordering on hatred from many conservatives and praise as well as criticism from even his staunchest of allies, this controversial figure nonetheless leaves behind a legacy of progressive action toward reforming the criminal justice system and reversing the deleterious repercussions of a failed war on drugs.

At a ceremony to announce Mr. Holder’s resignation, President Barack Obama praised him for having restored the Justice Department’s Civil Rights Division; a colossal undertaking considering the drug war’s proliferation of privatized prisons and mass incarceration and the impact it has had on the civil and human rights of countless people, many of whom struggle with mental health and substance use issues that could be more appropriately addressed through treatment—treatment which is often disregarded in favor of excessively long, yet profitable, prison sentences for minor, nonviolent offenses.

Mass Incarceration

Since 1980, the federal prison population has grown an alarming 800%, in contrast to the U.S. population increase of approximately one-third. From 1990 to 2009 alone, the prison population in the U.S. grew a staggering 1,600%. 

Although the U.S. comprises only five percent of the world’s population, it incarcerates 25% of the world’s prison population, isolating one in 100 Americans behind bars. With approximately 2.3 million inmates, the ‘land of the free’ incarcerates more people than Russia and China combined. 

The startling trend of mass incarceration in the U.S. is directly related to the stiff penalties and mandatory minimum sentences initiated by the failed war on drugs. Drug offenders make up half of the federal Bureau of Prisons population and most of these inmates are not the high level participants in the drug trade that one might imagine.  

Instead, many are imprisoned for occasional drug use or for diseases of addiction and mental illness.  These inmates, often from impoverished and disadvantaged backgrounds, serve harsh, long sentences for minor offenses within facilities that neglect the most basic human needs for safety and health, not to mention the provision of appropriate assessment and treatment.  

Warehoused in crowded prisons, upon bunk beds stacked three high, a lack of space, funding, and perhaps concern, denies most offenders in the U.S. any meaningful rehabilitation services. Upon paying their debt to society, these offenders, now branded with a felony record, are discarded to the street with little more than a bus pass and a parole officer’s phone number. Homelessness, joblessness and addiction ensure a swift return to a crowded cell and an ever-widening profit margin for the private prison industry.  

Privatized Prisons

Privatized prison systems have become the norm, with the two largest private prison companies ensnaring $3 billion in yearly revenue and attracting major investors such as Wells Fargo, Bank of America and Vanguard. Top executives pocket compensation packages worth over $3 million dollars, while the prisons they manage routinely run at 30% over capacity and are poorly staffed by prison personnel who are inadequately trained to handle such staggering caseloads.  

Although these institutions have generated enormous wealth for a few, the cost savings that proponents of privatized prisons initially promised has failed to pan out. While addiction and mental health research falters for lack of funding, tax payers fund $74 billion a year in corrections spending. To gain perspective on the numbers, consider that most states spend at least twice as much on corrections as they spend on education, with a few states, for example California, having the dubious distinction of maintaining a five to one prison-to-education spending ratio.

Abuse, Neglect and Death

GEO Group (formerly Wackenhut), the second largest privatized prison company in the world, spends a portion of its $1.6 billion in yearly profits making donations to hundreds of political campaigns and garnering legislative support through its army of lobbyists across 17 states, while its facilities are overrun with complaints and lawsuits for abuse, neglect, inhumane treatment, deplorable conditions and negligent death.  

In just one of many examples of abuse and neglect, an investigation by the Department of Justice Civil Rights Division into the GEO managed Mississippi youth facility, Walnut Grove, uncovered gang affiliated prison staff turning a blind eye to and even enabling brutal inmate on inmate violence; prison staff having sex with incarcerated youth and correctional officers brutally beating youths as a first response to inmate misbehavior.

Federal Judge Carlton Reeves wrote that the youth prison "has allowed a cesspool of unconstitutional and inhuman acts and conditions to germinate, the sum of which places the offenders at substantial ongoing risk.” The federal court ordered the facility to make vast and sweeping changes. 

Within a month, GEO fled Mississippi, being removed from Walnut Grove and voluntarily abandoning its two other facilities in the state, citing financial under-performance as the reason—a familiar echo from GEO, which also equivocated “financial under-performance” when it bolted from a Pennsylvania prison in 2009 amidst multiple wrongful death lawsuits. 

With over 50% of the federal prison population serving time for non-violent minor drug offenses, is neglect, abuse, violence and inhumane living conditions the best treatment we have to offer to those struggling with addiction, mental health issues and homelessness?  Correctional institutions—bulging at their razor wire with inmates who would be better served as patients in treatment centers—have become nothing more than a convenient fix for complicated issues that society and science are unwilling or unprepared to treat or address.

Holder’s Efforts Toward Criminal Justice Reform

This environment of corruption and complacency is what Mr. Holder purportedly sought to dismantle during his tenure as Attorney General. In 2013, at the unveiling of his prison reform package dubbed as “Smart on Crime,” Mr. Holder spoke forcefully and directly to the issue.

“We must face the reality that, as it stands, our system is, in too many ways, broken. And with an outsized, unnecessarily large prison population, we need to ensure that incarceration is used to punish, to deter and to rehabilitate — not merely to warehouse and to forget.” He continued “many aspects of our criminal justice system may actually exacerbate these problems rather than alleviate them.”

Mr. Holder’s prison reform package is aimed at preventing low level, nonviolent drug offenders from being sentenced to harsh, mandatory prison terms. 

Mr. Holder pushed for the Fair Sentencing Act of 2010, which reduces the differences in sentencing between charges for crack versus powdered cocaine—differences which have created significant racial disparities in prison sentencing for people of color since the ‘80s. The new act also eliminates mandatory five-year sentencing for first time crack cocaine possession. The original law, passed in the midst of the crack hysteria of the ‘80s, penalized the possession of crack at a 100:1 ratio in comparison to powdered cocaine. In other words, it took 100 times as much powdered cocaine to trigger the same federal penalties that a small amount of crack cocaine would receive. The new act reduces this ratio to 18:1, disappointing drug policy reform groups who were advocating for a fair 1:1 sentencing ratio.  

Although the Fair Sentencing Act can be seen as a move away from the destructive policies of the war on drugs, it is unlikely that it will have a dramatic effect on the racial disparities in imprisonment for drug crimes. Unlike the Reagan era crack-scare propaganda—filled with images of dark skinned “thugs” on street corners and in alleys smoking crack—would have us believe, African Americans comprise only 13% of crack cocaine users in the U.S. Consistent with this figure, African Americans also make up 13% of the U.S. population. The largest percentage of crack cocaine users in the U.S., at 51%, are white, and yet 90% of those serving time in federal prison for crack possession are African American.  

Police fight the “war on drugs” in locations where arrests can most easily be made, namely in the open air drug markets of inner city ghettos that are largely inhabited by people of color. Incentives such as lucrative overtime pay and civil asset forfeiture (which supports many police force budgets) leads to an abundance of drug related arrests while violent crimes sit unsolved. Although sentencing reform at the federal level demonstrates a small step toward reversing the drug war mentality, major reforms of the policies, practices and culture of municipal police departments are necessary if we have hope of abandoning what many have come to know as not the war on drugs, but a war on people.

Yet, to Mr. Holder’s credit, during his tenure both the crime rate and the prison population fell by 10%, a phenomenon which has not occurred in 40 years. In September the Justice Department reported that, as a result of these efforts, for the first time in 30 years the prison population saw a decrease. A decline of 4,800 inmates in 2014 is an optimistic start, and projections anticipate that the prison population will decrease another 2,000 in 2015 and by 10,000 in 2016. However, with many federal prisons filled to well over capacity, not a single prison is expected to go out of business despite an anticipated federal prison population decline of close to 17,000 between 2014 and 2016.    

Nonetheless, Mr. Holder’s efforts toward criminal justice reform have won him praise from criminal justice and drug policy reform advocates and the president alike. At the announcement of his resignation Mr. Obama said

“He believes, as I do, that justice is not an abstract theory. It’s a living and breathing principle.” Mr. Obama added that Mr. Holder used the law to improve people’s lives, and that “That’s why I made him America’s lawyer—the people’s lawyer.”

Bill Piper, Director of National Affairs for the Drug Policy Alliance, stated:

"Holder will go down in history as the Attorney General who began unwinding the war on drugs and steering our country away from mass incarceration.”

Wade Henderson, president and CEO of The Leadership Conference on Civil and Human Rights praised Mr. Holder for having presided over “one of the most forward-thinking and visionary Justice Departments in memory.” Mr Henderson added that "[r]emembering only his historic confirmation as the first African-American attorney general would not do justice to his tenure over the past six years, which was one of the most successful in modern American history.”

A Fast and Furious Conservative Outrage

Republicans called for Mr. Holder’s resignation over the botched “Fast and Furious” operation, a scheme conceived in 2009 by the Bureau of Alcohol, Tobacco, Firearms and Explosives to allow guns to be illegally purchased and “walked” across the Mexican border with purported hopes of tracing the weapons back to high-ranking leaders of the Sinaloa drug cartel. However, the bureau lost track of more than 2,000 of these illegally purchased weapons, several of which have been recovered from crime scenes, including the murder scene of U.S. Border Patrol agent Brian Terry. Mr. Holder maintained he knew nothing concerning the details of this operation until ATF whistle blowers went public with allegations in 2011.  

As has been the case with U.S. government officials in the past, was Mr. Holder complicit in turning a blind eye to illegal drug related gun smuggling activities within the agencies he was responsible for managing? Congress, on a mission to answer this question, demanded access to documents related to Fast and Furious. Mr. Holder became the first attorney general in U.S. history to be held in contempt of Congress when he refused to release documents related to the scandal. The Justice Department received a court order to produce these documents by October 18. Two days later Mr. Holder announced his resignation, adding to the suspicion surrounding the Fast and Furious debacle.

A favorite political punching bag of conservatives, who accused him of corruption and disregarding the law of the land in favor of partisan politics, many Republicans were more than glad to see Mr. Holder leave.  

“Eric Holder is the most divisive U.S. Attorney General in modern history,’’ Rep. Darrell Issa (R-Calif.) said in a statement. “By needlessly injecting politics into law enforcement, Attorney General Holder’s legacy has eroded more confidence in our legal system than any Attorney General before him.”

Jenny Beth Martin, co-founder of the Tea Party Patriots called Mr. Holder ”the nation’s most corrupt attorney general” and criticized him for having “utter and open contempt for the American people and the Constitution.”

Conversely, many families who have been ripped apart, with every attempt to find help for their addicted loved ones being met with stigma, indifference or the apathy of a broken system at the health care, judicial and societal level balk at the right’s notion that Mr. Holder’s efforts toward reform eroded confidence in our legal system. Contrarily, this administration’s reform efforts have given many desperate families their first glimpse of hope. 

Disadvantaged communities, which have become entrenched in cycles of poverty, violence, addiction, and imprisonment due to injurious socioeconomic and racial disparities within the health care, judicial, educational and economic systems may take issue with Ms. Martin’s assertions that Mr. Holder is in any way contemptuous toward the American people.  

Parents who’ve lost their children to either prison or overdose due to addiction most certainly will take issue with Ms. Martin’s claims.  

A Logical Response to a Crisis

Thanks to Mr. Holder’s efforts toward public awareness, in coordination with the Office of National Drug Control Policy (ONDCP), it has become widespread knowledge that we are in the midst of a heroin crisis and an overdose epidemic, with overdose now exceeding motor vehicle accidents as the leading cause of injury death in the U.S.  

Families who’ve watched their addicted loved ones overdose on opiates for the fourth, fifth and sixth time as they are shuffled through this broken system from treatment centers to the streets, from ERs to jails, are desperate to keep their loved ones alive until effective treatment can be obtained.  

Community-based harm reduction organizations, often poorly funded, stigmatized and reviled for the services they offer, have been quietly distributing Naloxone, a medication that quickly reverses opiate overdose, to drug users and their families for more than 17 years. Yet many families have no awareness of or access to this life saving medication. Treatment centers provide no education to patients and families on overdose prevention, and many states have no programs in place for Naloxone distribution. 

It is this administration’s efforts that have brought the need for wider access to naloxone to the forefront of public awareness. Mr. Holder and Michael Botticelli, director of ONDCP, have encouraged states to make Naloxone widely available, and many states have responded. To date, 26 states have passed legislation regarding Naloxone. Twenty-two of these states permit “third party administration," which allows family members and loved ones of those at risk of overdose to obtain and administer this life-saving medication. 

Many deaths occur when witnesses to an overdose are afraid to call 911 for fear of being arrested for possession of drugs. Thus far, 20 states have passed 911 Good Samaritan acts that encourage witnesses of an overdose to call 911 by offering immunity from prosecution for possession of a small amount of drugs.

Police across the nation are being trained in the use of Naloxone, and in the short time since the institution of these new programs, several lives have already been saved. At a day-long conference on Naloxone and law enforcement, Mr. Holder spoke about the heroin crisis and naloxone saying

“In recent years, we have worked to prevent opioid diversion and abuse by targeting the illegal supply chain, by disrupting pill mills, opening more than 4,500 heroin-related investigations since 2011 and increasing the amount of heroin seized along America’s southwest border by 320 percent between 2008 and 2013.” 

Speaking about Naloxone, he added, “I am confident that expanding the availability of this tool has the potential to save the lives, families, and futures of countless people across the nation.” Mr Holder encouraged federal, state and local police to “make real and lasting progress on behalf of those who are in desperate need of our assistance.”

Parents across the country have organized advocacy groups to combat the rising tide of opiate addiction and overdose. These groups have been instrumental in the fight for 911 Good Samaritan acts, wider access to Naloxone, increased funding for treatment research and the dismantling of the failed drug war.

One such advocacy group, Broken No More/GRASP, with chapters in 30 states, offers support to people who have lost loved ones to the effects of drugs. Denise A. Cullen, LCSW, executive director of Broken No More/GRASP, lost her son, Jeff, to an overdose in 2008.

Jeff had been released from jail on substance related charges only two days prior to his tragic demise and was on a month long waiting list for rehab at the time of his death. Mrs. Cullen shared this statement regarding Mr. Holder’s tenure.

“We at Broken No More/GRASP have witnessed a shift in the national discussion on substance use and the ways in which society should address it. Attorney General Eric Holder is responsible for much of this progress. Our hope is that he opened the door to humane, rational and effective drug policy reform. He will be missed. We encourage President Obama to appoint a strong leader to this position who is even more committed to ending the United States’ failed, destructive policies.”

Gretchen Burns Bergman, lead organizer of Moms United to End the War on Drugs, a national campaign of A New PATH (Parents for Addiction Treatment and Healing) expressed similar sentiments.

“We are sorry that Attorney General Eric Holder is resigning from office and we are grateful for his leadership on drug policy reform.  As mothers we know firsthand how devastating the war on drugs has been to our families and communities.  We sincerely hope that Mr. Holder’s successor will continue his efforts toward real criminal justice reform for the sake of our children and future generations.”

Ellen Sousares is a pseudonym for an overdose prevention and harm reduction advocate, a registered nurse, and mother to a son who struggles with heroin addiction.

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