Eric Holder: "widespread incarceration…is both ineffective and unsustainable"


In news that is no less stunning for being telegraphed, the attorney general of the United States today is declaring America's drug war-led over-incarceration a moral failure, and announcing new federal rules to deliberately evade mandatory minimum laws for drug offenses. Here's The New York Times:

In a major shift in criminal justice policy, the Obama administration will move on Monday to ease overcrowding in federal prisons by ordering prosecutors to omit listing quantities of illegal substances in indictments for low-level drug cases, sidestepping federal laws that impose strict mandatory minimum sentences for drug-related offenses.  […]

Saying that "too many Americans go to too many prisons for far too long and for no good law enforcement reason," Mr. Holder is planning to justify his policy push in both moral and economic terms.

"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's speech says. "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."

Mr. Holder will also introduce a related set of Justice Department policies that would leave more crimes to state courts to handle, increase the use of drug-treatment programs as alternatives to incarceration, and expand a program of "compassionate release" for "elderly inmates who did not commit violent crimes and have served significant portions of their sentences." […]

Under a policy memorandum being sent to all United States attorney offices on Monday, according to an administration official, prosecutors will be told that they may not write the specific quantity of drugs when drafting indictments for drug defendants who meet the following four criteria: their conduct did not involve violence, the use of a weapon or sales to minors; they are not leaders of a criminal organization; they have no significant ties to large-scale gangs or cartels; and they have no significant criminal history.

While I'm sure there are mitigating details yet to come out, and questions as to the legality and appropriateness of the executive branch taking deliberately evasive action to avoid enforcing laws (as opposed to engaging in more simple prosecutorial discretion), this has the makings of a key moment in beginning to undo the disastrous war on drugs.

As the Times story details, Holder is playing catch-up on prison reform behind more conservative groups and states, and is an effort to "bolster his image and legacy." (I made the argument in the July issue that drug reform marked President Barack Obama's "Last Gasp at a Legacy.") An important test going forward will be public opinion in the next couple of days, particularly from quarters that have historically been "tough on crime." My prediction, and fervent hope, is that there won't be much opposition at all. Then the real work of drug-war reform—including, hopefully, an announcement from Holder that the administration will no longer be raiding state-legal marijuana operations—can begin 

Reason on the drug war here.