Eric Holder's War on the War on Drugs

Eric Holder (Justin Sullivan/Getty Images)
Eric Holder (Justin Sullivan/Getty Images)

(The Root) — The Justice Department's plans to reduce federal incarceration rates related to the war on drugs represent a major victory for prisoners'-rights advocates and the African-American community, in which record numbers of young men have been imprisoned as casualties of America's drug wars.


In a historically significant speech before the American Bar Association in San Francisco on Monday, Attorney General Eric Holder outlined steps to reduce the numbers of people sentenced under mandatory-minimum laws. Holder's remarkable speech connected the shift in federal criminal policy to the enormous social and political costs of maintaining the status quo.

"A vicious cycle of poverty, criminality and incarceration traps too many Americans and weakens too many communities," argued Holder. "We cannot simply prosecute or incarcerate our way to becoming a safe nation."

Holder's speech represents an acknowledgment that the phenomenon of mass incarceration related to the drug wars is one of the most important civil rights issues of the 21st century. The American Civil Liberties Union, NAACP and prisoners'-rights activists at the local, regional and national levels have protested and lobbied for reforms that go beyond what Holder announced on Monday. These include ending mandatory-minimum sentences that were passed under the 1986 Anti-Drug Abuse Act during the height of the political hysteria over crack cocaine.

More than 25 years later, racial bias remains embedded in these anti-drug laws, exemplified by harsher sentences imposed on crack (more likely to be used and sold by blacks) versus powdered (more likely to be used by whites) forms of cocaine. Black male defendants have received, according to Holder, a contemporary version of these disparities in sentences 20 percent longer than their white counterparts for the same crimes.

In many ways Holder's speech represents a watershed moment for President Barack Obama. In recent weeks the Obama administration has been rightfully criticized for a lack of transparency regarding the National Security Agency's information-gathering capabilities, which Edward Snowden revealed, and potential violations of civil liberties. Obama's handling of the moral hazards required to defend American lives in an age of terror has, in the eyes of his harshest critics, made his national-security stances indistinguishable from those of his predecessors. Such interventions are an important and necessary part of healthy debate in a democracy.

But critics must also forcefully acknowledge the moments when the president has lived up to the promise of his 2008 election. This is one of those times. Holder's vigorous defense of voting rights had already earned him a place as one of the nation's best attorney generals in recent history. His brilliant reformulation of America's criminal-justice system and its relationship with black and Latino defendants cements his legacy as the most important Cabinet member of the entire Obama administration.


The Justice Department's intervention on the nation's criminal-justice system represents a crucial first step in transforming the system of mass incarceration that has decimated poor communities of color. It offers a moment of possibility for activists, policy experts and citizens to pursue a vision of American society that focuses on rehabilitation instead of incarceration, and democratic renewal instead of demonizing the young, the poor and the black and brown.  

The most compelling aspects of Holder's landmark speech echo themes of legal scholar Michelle Alexander's groundbreaking The New Jim Crow. Alexander's study of race and mass incarceration documents how the drug wars helped create a new racial underclass consisting primarily of black men who were nonviolent drug offenders. Most provocatively, Alexander argues that legal constraints (in voting, employment, the ability to travel and live in public housing) by criminal felony convictions represent a new form of racial segregation.


"Like Jim Crow (and slavery), mass incarceration operates as a tightly networked system of laws, policies, customs and institutions that operate collectively to ensure the subordinate status of a group defined largely by race," explains Alexander. This broken justice system undermines citizenship rights for people of color in general, especially poor African Americans.

Holder's candid acknowledgment in San Francisco that "too many Americans go to too many prisons for far too long and for no good law-enforcement reason" represents a striking transformation in federal criminal-justice policy, one that parallels the reasoning of some of the leading critics of mass incarceration. Last week during an NPR interview that served as a prelude to his ABA speech, Holder more explicitly channeled aspects of Alexander's argument. "There's been a kind of decimation of certain communities," he noted in a discussion of the drug wars, "in particular, communities of color."


For the black community, Holder's efforts to "take bold steps" to transform the nation's justice system represent a significant step forward for American democracy. More black men and women now languish in federal, state and local jails under current drug policies than during the 1963 March on Washington. The attorney general's admission that the nation's criminal-justice system is, in a very large sense, broken offers evidence that social-justice movements in the 21st century can fundamentally impact public policy in important ways.

Holder's discussion of the fact that "people of color often face harsher penalties than their peers" was "shameful" and "unworthy" of America's democratic ideals is both a welcome and timely moral and political intervention. America's entire criminal-justice system, from courts to prisons and jails, is broken precisely because of a long history and continuing legacy of institutional racism.


Politically, Holder's speech presented the new policies as a "commonsense" approach to law enforcement that follows several red states, including Kentucky and Texas, that have enacted policy reforms designed to ease prison overcrowding and save state budgets and taxpayer dollars. Holder's speech offered a range of new policy proposals to offer judges more sentencing discretion, curtail the public "school-to-prison pipeline," prevent violence against women and ensure that all defendants get legal right to counsel.

In many ways Holder has served as Obama's progressive alter ego, boldly proclaiming the importance of racial justice and American democracy in ways that the president has not. Make no mistake. The attorney general's words reflect the president's political and moral commitments. Holder's speech represents an important step in the nation's frustratingly uneven journey toward racial justice and genuine democracy. 


Peniel E. Joseph is founding director of the Center for the Study of Race and Democracy and a professor of history at Tufts University. Follow him on Twitter. The center will convene a National Dialogue on Race Day on Sept. 12, 2013, and invites all to join in the conversation. Follow the center on Twitter.

Peniel E. Joseph, a contributing editor at The Root, is professor and founding director, the Center for the Study of Race and Democracy, the Lyndon B. Johnson School of Public Affairs at the University of Texas at Austin. He is the author of Waiting ’Til the Midnight Hour: A Narrative History of Black Power in America, Dark Days, Bright Nights: From Black Power to Barack Obama and Stokely: A Life. Follow him on Twitter.