WASHINGTON, D.C. — In his first day of confirmation hearings, Merrick Garland alerted senators that if confirmed as attorney general he’ll work to usher in a new era of criminal justice in America. His vision includes replacing prison bars with treatment for addicts, further unwinding harsh mandatory minimum prison sentences and de-prioritizing the federal government’s ongoing war on marijuana.
“I think drug courts and diversion [programs] are an excellent idea for people who have addiction and need to be treated,” Garland replied in response to a question from a senator Monday. “I think now that the opioid crisis has struck large parts of America, many Americans now understand that sometimes it is just not a question of willpower to turn this stuff down. These kinds of drugs take control of your lives, and you just can’t do anything about it.”
The question came from Sen. Amy Klobuchar (D-Minn.), who told the attorney general nominee, “my Dad struggled with alcoholism most of his life and got through that thanks to treatment and recovery.”
“Treating people in those circumstances in the criminal justice system is an abuse of them”Garland testified of addicts
Unlike recent attorneys general (or even nominees), Garland used the exchange to decry America’s contemporary, tough-on-crime approach to addicts, like those who grew dependent on the opioids prescribed by their doctors — many who eventually run to heroin because it’s cheaper and doesn’t require a prescription.
“Treating people in those circumstances in the criminal justice system is an abuse of them, and also it’s a terrible miss allocation of resources,” Garland said. “So the drug courts that are able to get people into addiction programs are a godsend, and I’m in favor of them.”
It’s not just opioids. Garland told members of the Senate Judiciary Committee that even though marijuana remains illegal at the federal level, he wants to continue the stance of the Department of Justice, which is to de-prioritize marijuana cases.
“This is a question of the prioritization of our resources and prosecutorial discretion,” Garland testified. “It does not seem to me a useful use of limited resources that we have, to be pursuing prosecutions in states that have legalized and that are regulating the use of marijuana, either medically or otherwise. I don’t think that’s a useful use.”
The nominee went further. When pressed by Sen. Cory Booker (D-N.J.), Garland promised senators he wants to work with them to end systemic racism.
“One of the big things driving arrests in our country—stunningly to me even that it is still the case—is marijuana arrests. We had in 2019 more marijuana arrests for possession than all violent crime arrests combined,” Booker said. “Is there evidence that within the system there is implicit racial bias?”
“That’s definitely evidence of a disparate treatment in the system, which I think does arise out of implicit bias—unconscious bias maybe, sometimes conscious bias,” Garland replied. “This is a particular part of the reason why, at this moment, I think, I wanted to be the attorney general.”
That notion — that America has racism woven into its every fiber since our founders counted Black slaves as 3/5ths of a person in our Constitution — received push back from some Republicans.
“I want to ask you about this concept of implicit bias. Does that mean I’m a racist no matter what I do or what I think? I’m a racist, but I don’t know I’m a racist?” Kennedy asked.
“The label racist is not one that I would apply like that,” Garland lectured. “Implicit bias just means that every human being has biases. That’s part of what it means to be a human being. And the point of examining our implicit biases is to bring our conscious mind up to our unconscious mind, and to know we’re behaving in a stereotyped way.”
The question came after Senate Judiciary Chair Dick Durbin, who is also the Senate majority whip (or number two in command of Democrats), had already been open with the nominee, his colleagues on the committee and nation that his implicit biases — along with those of now-President Joe Biden — saddled hundreds and hundreds and hundreds of thousands of minorities with harsher prison sentences than their white peers.
“I made a serious mistake, along with many others — including the current president — in supporting a bill more than 25 years ago, which established a standard for sentencing crack cocaine 100 to one compared to powder cocaine. The net result of it was a failure of policy,” Durbin lamented. “It did not reduce addiction. It did not raise the price of crack cocaine, just the opposite occurred. We ended up arresting thousands of Americans and sentencing them to lengthy sentences, primarily African Americans.”
Like Biden, since then he disavowed that law. In Durbin’s case, he tried to make his amends by introducing The Fair Sentencing Act, which was signed into law by former President Obama.
Durbin and other Democrats then teamed up with Republicans and passed the First Step Act, which is now the law of the land. Or at least it’s supposed to be.
“President Trump, much to our surprise, signed it into law and even spoke positively about it at the State of the Union. Unfortunately, it has not been implemented,” Durbin said. “And the provisions in there to prepare people for release from prison, as well as to reduce sentences, have not been effectively enforced.”
Garland, the judge who former Senate Majority Leader Mitch McConnell famously refused to even give a hearing to when Obama nominated him to the Supreme Court, did what seems to come naturally to him: He argued that the nation’s judges should have more control when it comes to sentencing, not the nation’s increasingly partisan political class that puts polls over experts.
“We should do as President Biden has suggested,” Garland testified, “and seek the elimination of mandatory minimums, so that we, once again, give authority to district judges and trial judges to make determinations based on all of the sentencing factors that judges normally apply.”