Saturday, August 17, 2013

Osler on Holder, Myths and Remedies

Prof. Marc Osler has an editorial at the Minneapolis Star Tribune entitled, "Why Eric Holder's Drug Policy Changes Won't Work."

Osler notes that Attorney General Eric Holder's recent speech to American Bar Association conference "was exactly right about the scope and nature of our troubling levels of incarceration, which too often have little to do with limiting crime. However, his cures are unlikely to have much of an impact." Why? Because Holder's they are primarily based on three "myths":

1. That "directives from Main Justice are of primary importance at the ground level, where discretion is actually employed by assistant U.S. attorneys. Says Osler, "federal prosecutors who want to charge harshly will find a way to do so, and those who want to avoid mandatory minimums already have ways to do that."

2. That "incarceration solves the problem of narcotics at all." Osler argues:
Narcotics distribution is a business, and you rarely shut down a business by depriving it of labor in a labor-rich environment. To shut down any business, you need to deprive it of cash flow and credit. We should ignore the people and drugs and take the money — using techniques like those we’ve used to freeze funding for terrorist groups — if we really want to solve the problem of illegal narcotics. Such an approach would be a natural if the people heading our antidrug efforts were (1) trained in business, and (2) dedicated to solving the problem rather than making cases. 
3. That the executive branch’s "primary tool in addressing the incarceration binge is guiding the discretion of prosecutors." Osler says there are "much more direct and effective" tools available, and among them, the pardon power. See full text of this fine piece here.

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