Attorney General Eric Holder announced a series of prison sentencing revisions Monday, but the really big action must take place on Capitol Hill and in individual states.
Calling widespread incarceration “both ineffective and unsustainable,” Holder announced that he’d direct federal prosecutors to avoid charging low-level, nonviolent drug defendants with crimes that trigger severe mandatory minimum sentences.
Still, most crimes will continue to be prosecuted at the state and local levels, where Holder’s policy dictate has no force. And though he effectively denounced federal mandatory minimum prison sentences, it’s up to Congress to change the tough-on-crime laws that, until now, have proved politically alluring.
“This is our solemn obligation, as stewards of the law and servants of those whom it protects and empowers, to open a frank and constructive dialogue about the need to reform a broken system,” the attorney general said at an American Bar Association meeting in San Francisco.
The Justice Department’s new charging policy won praise from groups that have long fought against mandatory minimums.
“These policies will make it more likely that wasteful and harmful federal prison overcrowding will end,” declared Laura W. Murphy, the director of the American Civil Liberties Union’s Washington, D.C., office
Holder’s changes are limited in their reach, in part, because of the comparatively limited nature of federal law enforcement.
There are currently 219,000 prisoners incarcerated on federal charges, and 47 percent of them are behind bars for drug crimes, according to the federal Bureau of Prisons.
State prisons, by contrast, hold upward of 1.4 million inmates. About 237,000 are serving state time for drug offenses, according to the Bureau of Justice Statistics. Individual states are taking different approaches to their mandatory minimum laws, which piled up during the 1970s, ’80s and ’90s.
Last year, for instance, Georgia cut the mandatory minimum sentences for those caught with limited amounts of illegal drugs. South Carolina in 2010 removed a 10-year mandatory minimum sentence formerly applied to drug defendants caught in school zones.
Until now, the Obama administration has, by some measurements, been more aggressive than its Republican predecessor was in pursuing pot charges. Last year, according to the Administrative Office of the U.S. Courts, the Justice Department prosecuted 8,193 defendants in marijuana cases. In 2008, the last year of the Bush administration, Justice prosecuted 6,795 defendants on marijuana charges.
Holder on Monday didn’t address questions about how his agency will handle marijuana prosecutions in states such as Washington and Colorado, where voters have legalized possession for recreational purposes.
Under the new policy, Holder said, federal prosecutors will charge non-gang affiliated, nonviolent defendants only with “offenses for which the accompanying sentences are better suited to their individual conduct.” This means prosecutors will avoid, for selected defendants, layering on charges that carry mandatory minimums.
Samuel Buell, a professor of law at Duke University Law School who’s a former federal prosecutor, said prosecutors in a number of larger cities – such as New York, Los Angeles and Miami – already had been using similar tactics to avoid mandatory minimums in their plea agreements.
Buell cited the Eastern District of New York as an example, where prosecutors often confront low-level drug “mules” at John F. Kennedy International Airport. These smugglers, often women with children who were persuaded in their home countries to smuggle the drugs, usually aren’t prosecuted under the maximum penalty if they don’t have criminal records, he said.
"It’s something that’s been going on in U.S. attorneys’ offices with heavy drug dockets for a number of years, it’s just been under the radar," Buell said. "What Holder is doing is to expand that to some less-populous jurisdictions where they might not have that perspective on the relative seriousness of the crime.”
More than 200 mandatory minimum sentences apply to federal crimes, many of them involving drugs. Possession of 100 plants or 100 kilograms – 220 pounds – of marijuana, for instance, subjects a defendant to a federal mandatory minimum sentence of five years, as does possession of 28 grams – 0.1 ounce – of crack cocaine.
Congress has consistently been more likely to approve new mandatory minimum sentencing laws during election years, according to a study by the advocacy group Families Against Mandatory Minimums.
Judges already have some discretion to apply a so-called “safety valve,” allowing certain nonviolent first offenders to be sentenced more leniently than the mandatory minimums.
A Senate bill co-authored by Republican Rand Paul of Kentucky would expand this sentencing safety valve to cover more defendants; the Senate Judiciary Committee will hold a hearing in September on the bill, one of several introduced during this Congress to overhaul mandatory minimums.
“The administration’s involvement in this bipartisan issue is a welcome development,” Paul said Monday. “Now the hard work begins to change the law to permanently address this injustice.”
Holder also announced expanded opportunities for early release of those he described as “elderly inmates who did not commit violent crimes and who have served significant portions of their sentences.” About 124,000 state and federal prisoners are 55 or older.