Attorney General Eric Holder is set to announce a pretty big change in the way the Justice Department prosecutes minor drug cases. The new approach is meant to send fewer low-level, nonviolent drug users to federal prison, part of a broader effort to reduce America's bulging prison population.
The headline change seem pretty minor — Holder is ordering federal prosecutors to stop writing down the amount of drugs in certain types of small-fry cases — but the effect could be pretty dramatic. Federal mandatory minimum sentencing laws enacted in the 1980s and '90s make it so judges and juries have to hand down tough sentences for some relatively minor infractions. Charlie Savage at The New York Times gives an example of how the new guidelines should change that:
In the case of a defendant accused of conspiring to sell five kilograms of cocaine — an amount that would set off a 10-year mandatory minimum sentence — the prosecutor would write that "the defendant conspired to distribute cocaine" without saying how much. The quantity would still factor in when prosecutors and judges consult sentencing guidelines, but depending on the circumstances, the result could be a sentence of less than the 10 years called for by the mandatory minimum law. [New York Times]
The other changes Holder is announcing Monday include instructing federal prosecutors to leave more drug-related cases to state courts, expand the use of drug treatment and other alternatives to incarceration, and ramping up a program to secure the early release of "elderly inmates who did not commit violent crimes and have served significant portions of their sentences," according to prepared remarks.
Holder is proposing these changes as both a common-sense way to reduce spending and the right thing to do, morally. They're widely seen as something Holder wants to be remembered for, a legacy project.
"Too many Americans go to too many prisons for far too long and for no good law enforcement reason," Holder plans to say. This "imposes a significant economic burden — totaling $80 billion in 2010 alone — and it comes with human and moral costs that are impossible to calculate."
In many ways, Holder's new policy illustrates how much America has changed. Not so long ago,says Margaret Hartmann at New York, Holder's suggestions "would have drawn accusations of being soft on crime." But "as crime rates have dropped in recent years, lawmakers from both parties have been more open to reducing prison populations — with many conservatives swayed by their desire to cut government spending."
Because the Obama administration is sidestepping Congress, though, there's only so much Holder's Justice Department can accomplish. Here's a look at what this eased-up drug policy can do, and some things it cannot:
OBAMA'S POLICY CHANGES CAN:
1. Let judges give lighters sentences
Last December, federal Judge Roger Vinson told The New York Times he regretted some of the sentences he was forced to hand down, like the life sentence without parole he says he had to give Stephanie George, a nonviolent mother of three, 15 years ago. Police found a lockbox with cocaine in George's attic that she says her ex-boyfriend put there without her knowledge; the ex, Michael Dickey, and his crack-dealing associates each got less than 15 years for testifying against George.
"The punishment is supposed to fit the crime, but when a legislative body says this is going to be the sentence no matter what other factors there are, that's draconian in every sense of the word," Vinson said. "Mandatory sentences breed injustice." Holder's rules should help free up judges to use their own discretion.
2. Reduce the feds' Drug War footprint
A major goal of Holder's policy changes is to make sure federal law enforcement focuses on the biggest crimes and most dangerous criminals. And part of that push is leaving the less-serious crimes and criminals to state law enforcement.
This change should "partially reverse the trend of recent decades toward more federalization of criminal prosecutions and would shift dwindling federal resources toward the highest priorities," says Pete Williams at NBC News. Of course, states and local governments are facing their own tight budges, and "may not welcome such a move."
3. Reduce the prison population
Holder will note on Monday that the U.S. population has grown by about a third since 1980, while America's prison population has ballooned about 800 percent. At the federal level, a lot of that expansion is due to drug policy: Nearly half of the more than 219,000 federal inmates are serving time for drug-related crimes. And federal prisons aren't just full, they're operating at almost 40 percent above capacity.
It follows that fewer drug convictions will lead to fewer federal inmates.
OBAMA'S POLICY CHANGES WON'T:
(Story continues in The Week)