Veterans' Benefits and Same-Sex Marriage

As summer concludes and the federal bureaucracy returns to their Washington offices, the fall-out from SCOTUS' United States v Windsor decision continues.  The latest example of bright-line policy declarations comes from Eric Holder, the U.S. Attorney General, regarding veterans benefits for same-sex couples.

In his letter last week to House Speaker John Boehner, the AG instructs Congress that the Executive Branch will no longer be enforcing various sections of federal law dealing with benefits to veterans and their spouses.  To the extent that the targeted portions of the statute mirrored definitions of a married couple as defined in the Defense of Marriage Act, they are stricken.

The effect of this new policy is to open up the availability of federal benefits to same-sex spouses of service members, both active duty and reserves.  Citing the Fifth Amendment's equal protection clause, as well as a recent federal judge's decision that the targeted provisions of the federal veterans benefits statute were unconstitutional on 5th Amendment equal protection grounds, Holder advised Congress that enforcement of these provisions were no longer appropriate.  In doing so, he also remarked that instances where the Executive Branch cannot enforce federal law are, "appropriately rare."

All of these policy pronouncements coming out of Washington over the past few months points to the massive task of re-writing a significant portion of the United States Code in light of the demise of DOMA, and in favor of valid same-sex marriages.  We here at the Law Blogger, while recognizing the significant gains this civil rights struggle has made, have to wonder how well-accepted these new federal laws and regulations will be across the board and throughout the country.

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Posted in: Attorney General Eric Holder,equal protection,Fifth Amendment,same-sex marriage,SCOTUS,Veterans Administration

AG Holder Signals Change in "War-On-Drugs" Policy

AG Eric Holder @ ABA Annual Meeting

By: Timothy P. Flynn

Addressing the ABA's House of Delegates in San Francisco last week, U.S. Attorney General Eric Holder announced a significant shift in federal drug policy that could have an impact on our decades-long "War-on-Drugs".  The policy initiative will effectively gut the tough anti-drug sentencing policies that have been a staple of federal legislation for the past quarter century.

Holder indicated that sentencing guidelines would be reduced for non-violent low-level substance abuse offenders.  Stringent mandatory minimums would be eliminated.

In making the surprise high-impact announcement, the U.S. Attorney General said, "too many Americans go to too many prisons for far too long and for no truly good law enforcement reason."

Going forward with the new policy, known as the "Smart on Crime" initiative, Holder said that US Attorneys will be exercising their prosecutorial discretion to charge defendants with minor crimes [i.e. possession] better suited to their substance abuse conduct, rather than charging such low-level participants with distribution crimes that carry hefty minimum sentences.

The AG also signaled that his boss, President Obama, will be seeking a legislative initiative that would give federal judges more discretion in their sentences for drug-based crimes.  This was very welcome news to the ABA's Criminal Justice Section Chair, Neil Sonnett, who characterized the long-standing federal drug policy as one that features "over-criminalization" and "over-incarceration".

We here at the Law Blogger have seen many a client go "bye-bye" due to these harsh sentencing guidelines, some of which spill over into our state laws.  Remember the mandatory drug lifer law debacle of the 1980s?

With the onset of drug courts and sobriety courts over the past decade that feature treatment over incarceration, the criminal justice system here in Michigan has made great strides toward what Holder announced at the federal level.

Hopefully this momentum will continue after Holder's boss leaves office.  For the opposing point of view, take a look at Georgetown Law Professor William Otis' editorial in USA Today.  Also, here is the NYT's op-ed on the incarceration aspect of this debate; and here is The Economist, calling for "Holder to be Bolder".

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Posted in: ABA,Attorney General Eric Holder,criminal defense lawyer,drug abuse,Smart on Crime,substance abuse,Timothy P. Flynn,war on drugs

Legalized Marijuana: State Attorneys General Look to Washington, DC

Attorney General Eric Holder

U.S. Attorney General Eric Holder has been asked by the Attorney General of Colorado for an indication of how the DOJ will treat the marijuana legalization initiatives passed into law by Colorado and Washington.  Holder has promised to address the issue, "soon".

The USAG made the promise at a national conference of Attorneys General in response to a question posed to him by Colorado Attorney General John Suthers.  Holder indicated that the DOJ was working on formulating the policy response and that it was complicated.

Although marijuana has been legalized in two states, and is legal for medical purposes in a third of the states and the District of Colombia, it remains classified as an illegal "controlled substance" under federal law.  Thus, businesses within states that have legalized pot are wary of going too far down the road with the development of industry infrastructure if the DEA can, at any time, come crashing in and shut them down.

Although marijuana has been a key component in the federal government's 3-decade long "war-on-drugs", the popularity of marijuana among the mainstream citizenry, and its success at the polls, has given the feds pause.  Last fall's successful outright legalization initiatives has brought the matter to a head.  Conflicts between federal and state laws must be resolved in our federalist system of governance.

We here at the Law Blogger expect some sort of marijuana-equivalent of the "don't ask; don't tell" policy.  For the industry, this will be like getting served a bowl of luke warm soup.

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Posted in: Attorney General Eric Holder,Attorney General John Suthers,Colorado,marijuana