In the Friday afternoon news dump -- undertaken to insure minimal press coverage and public attention -- Attorney General Eric Holder reversed a largely successful DOJ policy that had resisted retroactive application of the so-called Fair Sentencing Act. The majority of courts of appeals to have addressed the issue have held, consistently with the general Savings Statute, 1 U.S.C. § 109, that the FSA does not have retroactive application, since there is no express provision for it, as the Savings Statute unambiguously requires. (In fairness, an almost equal number of appellate courts have held the opposite).
For those unfamiliar with it, the "Fair Sentencing Act," in my view more aptly called the Crack Dealers' Relief Act, prospectively reduces crack cocaine sentences to make them more nearly equal to the sentences imposed for powder cocaine. I have no strong objection in principle to the aims of the Act, but the accompanying oozing rhetoric, wonderfully parroted in Mr. Holder's memo, is a bit hard to take for those familiar with the actual and considerable dangers of crack.
As an aside, I would note that Holder's cave-in on retroactive application is not the end of the matter that he might believe it to be. Unlike what Holder apparently thinks, DOJ does not decide the law. Courts do. DOJ can surrender, but those courts having held as correct the Department's former position are hardly bound to change their interpretation of the law. They can and probably will appoint amicus counsel should the issue be contested in the future, as it is likely to be. This is also true in the event the issue reaches the Supreme Court, mimicking what SCOTUS did when the Reno Justice Department bailed out on 18 U.S.C. § 3501 in the Dickerson case.
But that's not the real news here.
Some might say the real news -- although not really all that new if you've been following the Department's "crack's-not-so-bad" waltz with the Sentencing Commission -- is the under-the-radar character of the announcement of the change in policy. And, indeed, the not-so-coincidental late Friday release says a good deal about the Administration's awareness of how much public support there's likely to be for the most brazen cozying up to the druggie bar it has yet attempted.
But the Friday dump not the most revealing coincidence.
Thursday's release of this is.
Obama is aware now, if he wasn't after last November's outcome, that he has lost the independents. My guess, as a 30-year inside-the-Beltway observer, is that Obama has decided to make 2012 a go-for-the-base election, rather than a go-for-the-middle election. So the idea is not to take centrist positions (although pretending to take them will still be high on the agenda). The idea is to energize the base, both for purposes of turnout and, even more as respects the present moment, fundraising.
The criminal defense bar is part of the base. I doubt I'll be alone in thinking that Mr. Holder's announcement -- which could have been crafted from an NACDL press release -- will have them even more giddy to reach into their wallets than they were before.
Still, Obama and Holder are not fools. They know that, for by far the most part, the misery to be wrought by the thousands of crack dealers they propose to put back on the street prematurely will be felt only after November 2012.