Eric Holder’s Historic And Little-Noticed Civil Rights Legacy

by Ian Millhiser & Nicole Flatow Posted on September 25, 2014 at 1:48 pm Updated: October 1, 2014 at 10:52 am

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"Eric Holder’s Historic And Little-Noticed Civil Rights Legacy"

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CREDIT: AP Photo/Pablo Martinez Monsivais

Reports surfaced Thursday that U.S. Attorney General Eric Holder is planning to resign once a new attorney general is confirmed by the Senate. Holder has been one of the longest-serving attorneys general, and not without political controversy. He suffered countless jabs by congressional Republicans, and was the first sitting cabinet member to have been held in contempt by Congress.
In the face of this, Holder has established a remarkable record in several areas, particularly civil rights, one that is just beginning to take form and that will require his successor to carry the mantle. Hearing reports of his resignation during a police brutality press conference Thursday, Rev. Al Sharpton said of Holder, “there is no attorney general that has demonstrated a civil rights record equal to Eric Holder.” Over the last year, Holder has become particularly outspoken on issues of criminal justice, with unpredecented calls to stop sending people to prison, and personal accounts of how he, too, has suffered the racial injustices of being a black man in America.
Here are some of the areas where Holder’s successor will bear the greatest burden:

Race In America

I am the attorney general of the United States. But I am also a black man.

After Michael Brown was killed by police in Ferguson, Missouri, this summer, it was Eric Holder who went to Ferguson to represent the Justice Department. “Eric Holder did what even Attorney General Robert Kennedy did not do in the 60s,” Sharpton said Thursday. “He went himself to the scene of a civil rights complaint. … He did not send the assistant attorney general.”
While there, Holder did something he has done several times during incidents of prominent racial tension. He recounted his personal experiences being racially profiled by the police. “I am the attorney general of the United States. But I am also a black man,” he told Ferguson residents. “I can remember being stopped on the New Jersey turnpike on two occasions and accused of speeding. Pulled over…’Let me search your car’…Go through the trunk of my car, look under the seats and all this kind of stuff. I remember how humiliating that was and how angry I was and the impact it had on me.” Holder also recalled those stories after the acquittal of George Zimmerman, when he told an NAACP convention that he resigned to tell his own son what it meant to be black in America after Trayvon’s death. “This is a sad reality in a nation that is changing for the better in so many ways,” he said. He also said after Trayvon’s death that it is time to question Stand Your Ground laws, saying they actually undermine public safety. These laws only exist at the state level, but the U.S. Civil Rights Commission is in the midst of an investigation of racial bias baked into the laws.
Holder’s rhetoric and professed commitment, as much as actions by his department, has been a persuasive force on issues of race and crime. And with racial tensions over U.S. criminal justice policy as high as they have ever been, the country will still need a voice like Holder’s in the coming years.

Police Conduct

Holder’s personal experience has also given him particular credibility on issues of police conduct. His brother is a retired police officer. He served as a federal prosecutor before becoming the nation’s top law enforcement officer. But he is no defender of bad cops. In the past five years, the Department of Justice has exercised its power to conduct investigations into police departments 20 times. That’s more than twice as many as were opened in the prior five years, according to the Justice Department. These investigations have ended with scathing findings of police brutality, abuse of the mentally ill, and excessive deadly force, and agreements known as consent decrees that bind cities to federal monitoring and other reforms.
Holder announced he would conduct a similar investigation in Ferguson, Missouri, in addition to a criminal investigation of Mike Brown’s death. And earlier this year, he announced that the Federal Bureau of Investigation would for the first time tape most interrogations by the Federal Bureau of Investigation, in an about-face on the prior ban on recording any interrogations. The department was once so resistant to the reform that a U.S. Attorney was fired in 2007 when he publicly opposed the FBI policy against interrogations. The change could hold cops accountable for instances in which they coerce false confessions from defendants and prevent all parties from lying about what was said.
But, as is evidenced from a string of police shootings of young black men just this summer, no law enforcement actor has done enough to hold police accountable, and the Justice Department’s role in policing the police is in its infancy. With the Justice Department’s pattern and practice investigations revealing that police excessive force is systemic rather than isolated, it will be the burden of the next attorney general to improve accountability.

Mass Incarceration

Too many people go to too many prisons for far too long for no good law enforcement reason.

Holder’s watershed attitude toward the United States’ massive prison population started last year, when he said during an announcement to adjust drug prosecutions that “[t]oo many people go to too many prisons for far too long for no good law enforcement reason.” Since then, he has announced that he would direct federal prosecutors to avert charges in several types of the most egregious drug cases involving draconian mandatory minimum prison sentences. He has repeatedly called on Congress to reform sentencing laws. And he has led the effort to revive Obama’s constitutional pardon power to shorten or eliminate unfair prison sentences, all as part of his new “Smart on Crime” initiative. Last week, Holder even boasted that states that reduced their prison population the most also saw greater drops in crime.
Over the past few months since launching this initiative, Holder has repeatedly devoted his public remarks to issues of criminal justice reform, including body worn cameras, community policing, and solitary confinement of youths.
He even issued a stern message in new guidance to schools, warning them that they must stop criminally punishing kids for disciplinary violations in what is known as the school-to-prison pipeline, or faced lawsuits from his office.
The federal prison population just started to drop for the first time since 1980 in 2013, but not by much. The United States still retains the highest prison population in the world. And efforts to avert unduly draconian prosecutions remain at the discretion of both individual prosecutors and Justice Department policy, so it will be the burden of the next attorney general to maintain and expand these policies, and to be a strong advocate for sentencing reform as several bipartisan bills await congressional action.

Drug Policy

Federal drug policy is interwoven with draconian prison sentences. While Holder is not in a position to rethink drug policies that are written into acts of Congress, he has come a long way over the past year toward scaling back once-vigorous crackdowns, especially on marijuana. He allowed two U.S. states to engage in an unprecedented experiment when he said he wouldn’t sue to block marijuana legalization laws in Washington and Colorado. And he changed the game by saying he also would ask his prosecutors to avert targeting those actors complying with state marijuana laws. He has since issued some guidance on how banks can do business with marijuana distributors, and even hinted at his support for changing marijuana’s designation under federal law as a dangerous substance with no accepted medical value.
Marijuana is listed as Schedule I in the Controlled Substances Act along with heroin and LSD, meaning it is federally illegal for all purposes, and cannot be prescribed by doctors. Holder has said he would be willing to work with Congress to reschedule marijuana, but he has not gone so far as to exercise his own power as Attorney General to change marijuana’s designation. Just this week, he doubled down on his subtle support in an interview with Katie Couric, saying, “I think it’s certainly a question that we need to ask ourselves — whether or not marijuana is as serious a drug as is heroin.”
On other drugs, Holder vied for making retroactive the Fair Sentencing Act, which narrowed the racist sentencing disparity between crack cocaine and powder cocaine sentences. And he has called for new solutions to an epidemic of overdoses of prescription drugs, including urging police to distribute an overdose antidote known as naloxone, and establishing pharmacies as drop-off points for unused prescription drugs.
It will be on the next attorney general to choose which direction drug policy will go. In Holder’s earlier years, he actually ratcheted up prosecution of medical marijuana dispensaries, after an earlier memo had promised not to. Holder’s shifting policy on prosecutions is a reminder that anyone involved with marijuana is still eligible for federal prosecution, so long as federal law remains the same. So it will be up to Holder’s successor to maintain his policy on drug crackdowns, to serve as a voice for federal reform, and possibly to reschedule marijuana.

Voting Rights

Holder presided over what is likely the worst defeat for voting rights in the post-Jim Crow era, the Supreme Court’s 5-4 decision gutting much of the Voting Rights Act (VRA) . Under that decision, the Court struck down the formula the VRA used to determine which states must “preclear” new voting laws with officials in Washington before those laws could take effect. Within hours after that decision, states like Texas, which previously had been subject to preclearance, began implementing voter suppression laws that were blocked under the fully operational Voting Rights Act.
Under Holder’s leadership, the Justice Department filed two lawsuits seeking to undo much of the damage caused by the Supreme Court’s decision. Relying on a provision of the Voting Rights Act that allows states to be brought back under the preclearance regime if a court finds that “violations of the fourteenth or fifteenth amendment justifying equitable relief have occurred within the territory of such State or political subdivision.” The first lawsuit targets Texas, which, as Holder noted, is a strong candidate for such federal supervision due to “evidence of intentional racial discrimination” in that state. Among other things, a federal court found that Texas Republicans charged with drawing the states’ legislative maps “consciously replaced many of [a] district’s active Hispanic voters with low-turnout Hispanic voters in an effort to strengthen the voting power of [the district’s] Anglo citizens.” The second lawsuit targets North Carolina, which enacted one of the most aggressive — if not the most aggressive — voter suppression laws in the country.
Whoever succeeds Holder, however, will have a difficult road ahead of them if they hope to see either of these lawsuits succeed. In August, a George W. Bush appointed federal trial judge allowed much of the North Carolina law to take effect, although that case is, coincidentally, being heard today by a federal appeals court. The Texas case will travel through the very conservative United States Court of Appeals for the Fifth Circuit. And both cases will ultimately end up in the same Supreme Court that tore down much of the Voting Rights Act in the first place.