Eric Holder's Prison Break

The attorney general's belated but welcome criticism of mass incarceration and mandatory minimums

Two years ago, while researching a story about drug policy reformers' disenchantment with Barack Obama, I interviewed Eric Sterling, who as a lawyer for the House Judiciary Committee in the 1980s had a hand in creating the mandatory minimum sentences he would later decry as an activist. Sterling was aghast at the penny-ante crack cases that federal prosecutors across the country were pursuing, sending overwhelmingly black defendants to prison for years over mixtures of cocaine and baking soda weighing less than an ounce.

Aside from the injustice of such harsh penalties, Sterling said, "this is a scandalous waste of federal resources." Evidently the attorney general of the United States agrees, although it took him almost five years to say so. Better late than never.

"Federal prosecutors cannot-and should not-bring every case or charge every defendant who stands accused of violating federal law," Eric Holder declared in an August 12 speech to the American Bar Association. As part of a "Smart on Crime" initiative, he said, U.S. attorneys will "develop specific, locally tailored guidelines consistent with our national priorities-for determining when federal charges should be filed."

Those "national priorities" include "focus[ing] on the most serious cases that implicate clear, substantial federal interests." Presumably that means the Justice Department will stop dragging young black men into federal court for a few rocks of crack.

Maybe not. In addition to telling the U.S. attorneys who nominally work for him that they should not prosecute nonviolent, low-level drug offenders, Holder told them what to do when they prosecute nonviolent, low-level drug offenders. These two instructions seem somewhat contradictory, although perhaps it is best to think of them as Plan A and Plan B.

Plan B involves omitting drug amounts from charges against low-priority defendants. Since mandatory minimums are triggered by drug weight, this maneuver could substantially reduce some prison terms.

It is not clear exactly who will be eligible for such prosecutorial mercy, or to what extent it will go beyond the existing "safety valve" for minor drug offenders. One of Holder's requirements is "no ties to large-scale organizations," a test that any drug dealer who does not produce his own supply may have trouble meeting. Another criterion is no "significant criminal history," which could disqualify defendants based on minor transgressions such as marijuana possession or disorderly conduct.

"His actual proposals are thin and inadequate to meet the problem," says Eric Sterling. He worries that Holder's initiative is little more than an "attempt to put an attractive ribbon on his career."

However many defendants benefit from Holder's new policy, there is no guarantee it will continue in the next administration, which is one reason congressional action is important. Holder recommended statutory reforms with bipartisan backing that reflects a growing sense of regret about the tough-on-crime binge of the '80s, which expanded the U.S. prison population nearly ninefold and made us the world leader in per capita incarceration.

The real significance of Holder's initiative may lie in its ratification of that regret. "Too many Americans go to too many prisons for far too long, and for no truly good law enforcement reason," he said. "Widespread incarceration…is both ineffective and unsustainable."

As Holder acknowledged, this conclusion has "attracted overwhelming, bipartisan support in 'red states' as well as 'blue states,'" leading to sentencing reform in surprising places such as Texas. Conservatives as well as progressives have concluded that mindlessly severe penalties are neither fair nor prudent.

The transideological nature of this movement was illustrated by the headline of a press release that longtime conservative activist Richard Viguerie issued after Holder's speech: "Viguerie Welcomes Holder and Obama's Belated Embrace of Criminal Justice Reform."