Attorney General Takes Aim At Harsh Mandatory Federal Sentences

Holder Calls for an End to the Cycle of Poverty and Incarceration – In a continued signal of détente for the criminal justice system, US Attorney General Eric Holder made sweeping changes to the federal sentencing requirements by ordering federal prosecutors to cease listing the quantity of drugs in low-level drug cases, enabling them to sidestep federal laws that impose lengthy mandatory minimum sentencing requirements for possession of drugs and other related offenses.

In a speech at the American Bar Association’s annual meeting in San Francisco, Mr. Holder laid out his new policy which aims at modifying the Justice Department’s charging policies “so that certain low-level, nonviolent drug offenders who have no ties to large-scale organizations, gangs, or cartels will no longer be charged with offenses that impose draconian mandatory minimum sentences.”

Instead, “They now will be charged with offenses for which the accompanying sentences are better suited to their individual conduct, rather than excessive prison terms more appropriate for violent criminals or drug kingpins.”

His speech also deplored the moral impact of the US’s high incarceration rates.  He stated, “Even though this country comprises just 5 percent of the world’s population, we incarcerate almost a quarter of the world’s prisoners.”

And he linked those rates to the poverty and incarceration cycle, much as author Michelle Alexander would have.

“Today, a vicious cycle of poverty, criminality, and incarceration traps too many Americans and weakens too many communities. And many aspects of our criminal justice system may actually exacerbate these problems, rather than alleviate them,” the Attorney General said.  “It’s clear… too many Americans go to too many prisons for far too long, and for no truly good law enforcement reason. It’s clear, at a basic level, that 20th-century criminal justice solutions are not adequate to overcome our 21st-century challenges. And it is well past time to implement common sense changes that will foster safer communities from coast to coast.”

“This means that federal prosecutors cannot – and should not – bring every case or charge every defendant who stands accused of violating federal law. Some issues are best handled at the state or local level,” he continued.

The Attorney General touched all of the rails, including the fact that “people of color often face harsher punishments than their peers.”  He noted a report that showed “black male offenders receive sentences nearly 20 percent longer than those imposed on white males convicted of similar crimes.”

Mr. Holder stated, “This isn’t just unacceptable – it is shameful.”

“We will start by fundamentally rethinking the notion of mandatory minimum sentences for drug-related crimes. Some statutes that mandate inflexible sentences – regardless of the individual conduct at issue in a particular case – reduce the discretion available to prosecutors, judges, and juries. Because they oftentimes generate unfairly long sentences, they breed disrespect for the system,” he continued.

“Although incarceration has a role to play in our justice system, widespread incarceration at the federal, state and local levels is both ineffective and unsustainable,” Mr. Holder said. “It imposes a significant economic burden – totaling $80 billion in 2010 alone – and it comes with human and moral costs that are impossible to calculate.”

“This is a big deal,” Laura W. Murphy, Director of the ACLU Washington Legislative Office, and Vanita Gupta of the Center for Justice wrote on Monday.  “This is the first speech by any Attorney General calling for such massive criminal justice reforms. This is the first major address from the Obama Administration calling for action to end the mass incarceration crisis and reduce the racial disparities that plague our criminal justice system.”

They note that many of the reforms that the ACLU has long championed made it into the Attorney General’s speech.  These include: Developing guidelines to file fewer cases;  Directing a group of U.S. Attorneys to examine sentencing disparities and develop recommendations to address them;  Directing every U.S. Attorney to designate a Prevention and Reentry Coordinator;  Directing every DOJ component to consider whether regulations have collateral consequences that impair reentry;  Reducing mandatory minimum charging for low-level drug offenses;  Expanding eligibility for compassionate release; Identifying and sharing best practices for diversion programs; Calling into question zero tolerance policies and other policies that lead to the school to prison pipeline; and Challenging the legal community to make the promise of Gideon (right to counsel) more of a reality.

They write, “The Attorney General has assured us that this is just the beginning, and he is taking on the bipartisan spirit that has produced state level reforms and has fueled the reduction in state prison populations.  These changes are long overdue because the federal prison population continues to grow and is 40% over capacity. What’s worse, as a soon to be released ACLU report will show, a stunning 2,074 federal inmates are serving sentences of life without the possibility of parole for nonviolent crimes.”

“Mandatory minimums are partially to blame, leading to a situation in which billions of federal dollars currently go to incarcerating people convicted of low-level drug crimes,” they write. “It’s great Holder is leading the way, but there is a limit to what he can accomplish by executive action alone.”

They call for Congress to act and note that they “strongly support bipartisan bills introduced by Senators Paul and Leahy and Senators Durbin and Lee to lessen the impact of mandatory minimums.”

This may be possible because, as conservative columnist Debra Saunders notes, “It was big news because the administration finally has caught up with Republicans such as Sens. Rand Paul of Kentucky and Mike Lee of Utah. Paul and Lee have co-sponsored bills with Dick Durbin of Illinois and Pat Leahy of Vermont to reform mandatory minimum sentences so that nonviolent small-time offenders don’t serve decades in prison while kingpins who can inform on them serve lesser time.”

“It was big news because the Obama administration finally looked to what it could do about racial disparities under federal jurisdiction – instead of pointing at what others in the criminal justice system are doing wrong,” Ms. Saunder writes noting that it was also big news because “the administration finally is saying that it won’t prosecute cases it never should have touched to begin with. You don’t send the heavy artillery of federal enforcement to roust varmints when its job is supposed to be to bring down the top of the food chain in the drug trade.”

—David M. Greenwald reporting