WOLA: Advocacy for Human Rights in the Americas
28 Apr 2015 | Commentary

A Legacy to Build On: New Attorney General Has Opportunity to Expand Drug Policy Reforms

On Monday, April 27, Loretta Lynch was sworn in as Attorney General. Lynch, a former U.S. Attorney for the Eastern District of New York, becomes the first African-American woman to serve as the top U.S. law enforcement official. Her tenure begins at a promising and crucial moment for drug policy reform. Lynch succeeds Eric Holder in office and inherits a changing drug policy landscape, in the United States and abroad. During his tenure from 2009-2015, Holder adopted limited but important reforms to address over-incarceration for drug crimes and racial inequalities in the criminal justice system. Holder’s Justice Department also provided space for states to implement legal, regulated marijuana markets. Lynch, who has spoken out on racial inequalities in drug laws in the past, now has an opportunity to build on Holder’s reforms.

Toward the end of his tenure, Holder adopted a number of federal initiatives intended to reduce prison populations and curb the over-incarceration of non-violent drug-related offenders. He recognized that existing draconian drug laws neither promoted public security nor protected basic civil rights, and instead fell heavily on the most marginalized sectors of society. In 2013, the Justice Department introduced “Smart on Crime,” an initiative to review the criminal justice system to ensure federal laws are enforced more efficiently and fairly. The initiative instructed prosecutors to avoid charging people who are arrested for low-level, non-violent crimes with offenses that carry harsh mandatory minimum sentences. For those people already imprisoned on federal charges (many of them drug-related), in 2014 the department introduced the Clemency Initiative. The initiative encourages individuals who would have received lower sentences if sentenced today to appeal for presidential reduction or commutation of their sentences. On March 31, 2015, President Obama commuted 22 sentences of people serving excessively long sentences for non-violent drug crimes. This is merely the beginning of what the Clemency Initiative can accomplish—as of late February 2015, over 35,000 federal inmates have requested relief under the initiative. Before becoming Attorney General, Lynch expressed concern over the racial impact of drug laws—particularly crack/cocaine sentencing discrepancies—and she now has the opportunity to reinforce and expand Holder’s initiatives. (To learn more about the wide range of sentencing reforms in recent years, click here.)

Holder’s reforms marked an important shift in federal priorities, but the reforms remain incipient and the concrete achievements have not yet caught up to the rhetorical strides. The federal prison population dropped slightly in 2013, the most recent year for which data is available. However, state prison populations increased slightly from 2012 to 2013, meaning that the total domestic prison population increased. Some states have bucked the bipartisan trends to end mass incarceration and now imprison more people (see map below for changes in prison populations). Furthermore, since most of the recent reforms have reduced prison sentences rather than eliminate them altogether, large reductions in the federal prison population will take years to accomplish. Holder’s reforms were clearly a step in the right direction, but much more needs to be done.

Changes in State Prison Populations

The above map shows divergent trends in state prison population in recent years. The increases (reds) are relative to the year 2008, and the reductions (greens) are relative to the state’s peak year. This data was compiled by The Sentencing Project based on figures from the Bureau of Justice Statistics, and the map was created by WOLA.

To build on the reform momentum, Lynch must play a major role, as existing gains remain not only limited, but tenuous. Many reforms hinge on “guidance” to prosecutors when seeking charges and sentences; ultimate decisions remain in the hands of individual United States Attorneys. Commutations remain at the discretion of the president, and while Obama has supported some drug law reforms, neither he nor his successor in the White House is bound to continue them. Congressional action—through legislation like Senators Cory Booker and Rand Paul’s REDEEM Act, which aims to facilitate reintegration and reduce recidivism—is still necessary to make more serious inroads at reducing the enormous U.S. prison population. As the top law enforcement official in the country, Lynch should work with allies—and occasional adversaries—in Congress, the administration, and in the states to seek lasting reductions in the prison population.

Attorney General Lynch also inherits the Justice Department’s accommodation of state-level legal, regulated marijuana markets. Holder, through guidance issued by Deputy Attorney General James Cole in August 2013, instructed federal prosecutors to use their “limited investigative and prosecutorial resources” to only pursue cases that meet certain enforcement priorities, among them the distribution to minors, the enrichment of criminal enterprises, and the use of violence. Crucially, the guidance acknowledged that the states’ regulatory approach could affirmatively address federal priorities, including by “replacing an illicit marijuana trade that funds criminal enterprises with a tightly regulated market in which revenues are tracked and accounted for.” In the 20 months since the guidance was issued, Colorado and Washington have taken important steps toward the creation of well-regulated recreational marijuana markets, and Alaska and Oregon voters have also approved similar ballot initiatives. By wisely accommodating states that have opted to legalize marijuana, the Justice Department has provided the states with the opportunity to see whether their innovations can indeed offer a compelling alternative to marijuana prohibition and the misery it has created.

Yet like many of Holder’s drug law reforms, this guidance represents an important policy advance but is not yet law. In her Senate confirmation hearing, Lynch evidently disagreed with President Obama’s own view that marijuana is no more dangerous than alcohol. (By a wide margin, most Americans consider alcohol to be more harmful than marijuana.) But when outlining how her views might be implemented in practice, Lynch did not break with the current administration’s policy; she would continue to oppose legalization (as Holder and Obama do) and pursue enforcement priorities similar to those currently in place. How Attorney General Lynch will prosecute marijuana-related offenses—particularly recreational marijuana markets—remains to be seen, but she has not yet proposed a radical change in policy.

Loretta Lynch is becoming Attorney General at a critical time in drug policy history. A majority of Americans support marijuana legalization and bipartisan support for drug law reform is growing. As Attorney General, she has the best opportunity in decades to build on sentencing reforms and establish, through both her words and her policies, that mass incarceration is neither a fair nor an effective way to implement criminal justice.