Holder's Mandatory Minimum Announcement Finally Uses Executive Power To Expand Liberty


Eric Holder
U.S. Government

In an era when government action increasingly comes as a matter of unilateral executive order — "Stroke of the pen. Law of the Land. Kinda cool," former Clinton adviser, Paul Begala, said in reference to the practice — we were overdue for a little imperial overreach that actually made government policy less onerous rather than more so. That's what we seem to be getting in the form of a new policy from the Obama administration, to be formally announced today by Attorney General Eric Holder, to tailor drug prosecutions so that minor offenders are no longer subject to insanely long prison sentences. It's not an end to prohibition, by any means, but it's a step back from some of the worst abuses of the government's jihad against the trade and consumption of some chemicals that make people feel good.

According to an early draft of Holder's remaarks released to Reuters, Holder will tell a gathering of the American Bar Association in San Francisco:

"I have 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."

Holder also reportedly plans to ease of the practice of inserting federal prosecutors, willy-nilly, into local drug cases. State penalties aren't necessarily less draconian than federal ones, but this means many defendants may, depending on how this policy change is implemented, face one trial rather than two for the same acts, and one set of penalties rather than a crushing pile-on.

As for those already serving ludicrously long sentences for drug offenses, Holder will reportedly consider releasing "inmates facing extraordinary or compelling circumstances—and who pose no threat to the public."

Why does this matter? Because federal get-tough chest-beating has gone through hysterical phases, starting in the 1980s, that resulted in long and nonsensical penalties for a variety of crimes. Drug prohibition is a major "beneficiary" of such enhanced and discretion-free sentencing. The chart below was put together by the Families Against Mandatory Minimums Foundation, and covers sentencing under 21 U.S.C., Section 841.

Federal Mandatory Minimum sentences
Families Against Mandatory Minimums Foundation

That's not the end of it, unfortunately. FAMM ofers a complete list of mandatory minimum penalties here. The sentences add up, too. A previous conviction or proximity to a firearm can turn a simply life-destroying stay behind bars into something approaching a geological period. More chilling information can be found at the FAMM Website.

Holder's announcement doesn't repeal the laws that established mandatory minimums — it's merely a declaration of executive branch restraint that could be dropped by a future administration. The bipartisan Justice Safety Valve Act of 2013, S.619, would give federal judges some leeway to hand down sentences less harsh than those previously mandated by law. Sponsored by Sen. Rand Paul, as well as by Sen. Patricky Leahy, with a counterpart in the House, the measure is expected to get a boost from Holder's announcement.

Update: Holder's full remarks are available on the Department of Justice Website here. While wide-ranging and a bit of a grab bag, the speech includes some encouraging elements:

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.

There is a lot in here to like, in terms of restraining the federal role in criminal law, and also in terms of pushing for more discretion and potentially less draconian punishment of minor transgressions. We'll need to see how, or if, this proves out in terms of actual practice.