Today, Attorney General Eric Holder gained some well-earned buzz with a speech before a San Francisco gathering of the American Bar Association distancing the administration from the recent American emphasis on throwing even minor transgressors into prison for as long as possible, no matter the cost to lives, culture and the taxpayers. He announced that the federal government would be reexamining its habit of inserting itself into as many criminal cases as possible, and that it would back off efforts to seek imposition of mandatory minimum sentences in at least some of the cases the U.S. Justice Department does pursue. That's just swell, many people who've been horrified by draconian prison sentences for even minor legal transgressions conceded. But that's just executive restraint, to last only so long as this president's tenure in office — or even shorter if President Obama has a(nother) bad day. That has members of Congress scrambling to turn reform of mandatory minimum sentences into a matter of law, and not just an exercise of executive mercy.
Holder's sentiments, and the announced policy changes, should not be minimized. Among other points made to the ABA, he said:
It’s imperative that we maximize our resources by focusing on protecting national security; combating violent crime; fighting against financial fraud; and safeguarding the most vulnerable members of our society.
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. And that’s why I have today directed the United States Attorney community to develop specific, locally-tailored guidelines – consistent with our national priorities – for determining when federal charges should be filed, and when they should not. ...
The President and I agree that it’s time to take a pragmatic approach. And that’s why I am proud to announce today that the Justice Department will take a series of significant actions to recalibrate America’s federal criminal justice system.
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. When applied indiscriminately, they do not serve public safety. They – and some of the enforcement priorities we have set – have had a destabilizing effect on particular communities, largely poor and of color. And, applied inappropriately, they are ultimately counterproductive.
This is why I have today mandated a modification of 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. 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. By reserving the most severe penalties for serious, high-level, or violent drug traffickers, we can better promote public safety, deterrence, and rehabilitation – while making our expenditures smarter and more productive. We’ve seen that this approach has bipartisan support in Congress – where a number of leaders, including Senators Dick Durbin, Patrick Leahy, Mike Lee, and Rand Paul have introduced what I think is promising legislation aimed at giving federal judges more discretion in applying mandatory minimums to certain drug offenders. Such legislation will ultimately save our country billions of dollars while keeping us safe. And the President and I look forward to working with members of both parties to refine and advance these proposals.
That's all good stuff, if a bit behind the curve. Holder's announced policy change for the Justice Department, to avoid draconian sentences in the case of "certain low-level, nonviolent drug offenders who have no ties to large-scale organizations, gangs, or cartels" is a safe enough change, following public opinion rather than leading it. In fact, the most recent Reason-Rupe poll finds that only six percent of Americans think marijuana possession should draw prison time.
But a Justice Department policy that tailors prosecutions to avoid mandatory minimums, or keeps federal prosecutors entirely out of some cases, can be dropped as easily as it was adopted. That's why Rep. Justin Amash's office (R-Michigan) told Reason, "The policy change is a step in the right direction, but Congress should address this issue through legislation."
And, as Holder mentioned, such legislation has been working its way through Congress with bipartisan backing. The Justice Department's policy shift is seen as lending administration support to a bill sponsored by Sen. Rand Paul (R-Kentucky) and Sen. Patrick Leahy (D-Vermont), who happens to be the chairman of the Senate Judiciary Committee. That Justice Safety Valve Act of 2013 "would allow judges to sentence federal offenders below the mandatory minimum sentence" under certain conditions.
In response to Holder's announcement, Sen. Paul released a statement saying, "I am encouraged that the President and Attorney General agree with me that mandatory minimum sentences for non-violent offenders promote injustice and do not serve public safety."
For his part, Sen. Leahy agreed that "our reliance on mandatory minimums has been a great mistake, and I am encouraged that Attorney General Holder and the Department of Justice have joined the growing chorus from across the political spectrum that question this one-size-fits-all approach."
Rep. Thomas Massie (R-Kentucky) and Rep. Robert C. "Bobby" Scott (D-Virginia) have yet to respond to Holder's policy shift, but they've introduced a House counterpart to the Senate bill put forward by Paul and Leahy. At the time that bill was introduced, they released a statement in which Scott said, "Mandatory minimum sentences have been shown to mandate unjust results. They have a racially discriminatory impact, studies conclude that they waste the taxpayer’s money, and they often violate common sense."
Massie was quoted as commenting, "The one size fits all approach of federally mandated minimums does not give local judges the latitude they need to ensure that punishments fit the crimes. As a result, nonviolent offenders are sometimes given excessive sentences. Furthermore, public safety can be compromised because violent offenders are released from our nation's overcrowded prisons to make room for nonviolent offenders."
The administration's policy shift is a good move as a first step, but it depends too much on the whims of the executive branch, both in its implementation and its longevity. Legally mandated draconian prison sentences were inflicted on the American people by law, and they can only be done away with on a permanent basis, or their damage reliably reduced, the same way.