Sentencing

Eric Holder's Prison Break

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

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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 absurdly 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 a speech to the American Bar Association this week. 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" such as "protecting Americans from violent crime." 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 has the potential to 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 along the lines of the Justice Safety Valve Act and the Smarter Sentencing Act, bills 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 and amplification 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 at the federal, state, and local levels 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 and Arkansas. Conservatives as well as progressives have concluded that mindlessly severe penalties are neither fair nor prudent—that "long prison terms are wasteful government spending," as UCLA criminologist Mark Kleiman puts it.

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."

NEXT: Brickbat: Lowblow

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  1. “Federal prosecutors cannot?and should not?bring every case or charge every defendant who stands accused of violating federal law,” Eric Holder declared in a speech to the American Bar Association this week.

    Just the ones that can further your political aspirations.

    1. If it’s bad enough to charge anyone, it’s bad enough to charge everyone. If it’s not bad enough to charge everyone it shouldn’t be the law.

      1. If you think Daniel`s story is incredible,, a month-back my boy frends brother basically also made $4432 sitting there a seventeen hour week an their house and their friend’s step-aunt`s neighbour did this for nine months and broght in more than $4432 in there spare time at there computer. follow the steps available here….. WEP6.COM

        Go to website and click Home tab for more details.
        ?????????????????????????

    2. Exactly. The US Attorneys — and the federal prosecutors in their offices — are all looking for a “promotion”.

      The one number they always look at is their “conviction percentage” stat; indicting a street corner crack dealer with RICO charges that could send him to jail for decades and then “settling” for a drug violation that puts him in jail for five years boosts that crucial stat.

    3. my neighbor’s step-sister makes $64 an hour on the laptop. She has been without a job for 10 months but last month her payment was $17489 just working on the laptop for a few hours. Go to this web site and read more http://www.max47.com

  2. why does anyone take the words of anyone from this administration seriously? You would think that five years in, the only thing perfectly clear to anyone is that when the AG, POTUS, or any other official says anything, the likely truth is the exact opposite.

    1. Uh, he said he’s going to send it in a memo to federal prosecutors. How much more ironclad do you need?

      1. Repeal of the law and Seppuku from everyone who enforced it.

  3. So we are going to make the enforcement of laws even more about selective judgment by prosecutors then it already is. What could go wrong?

    It the law shouldn’t be enforce then lets get rid of the law.

    1. That’s what I was thinking. This is a shitty way to treat a symptom and ignore the problem. The AG should be prosecuting everything to the letter of the law.

      Don’t have enough resources to do that? Maybe it’s an indication that the law is stupid to begin with.

    2. This is at the heart of the problem with federal criminal laws. They’re purposely drawn to be as vague and inclusive as possible, allowing for “prosecutorial discretion” to determine who goes to jail and who does not. The goal seems to be to make every one of us guilty of a crime that we can then be charged with if the feds decide they don’t like us.

      1. Bingo! I would bet everybody in this country criminally violates a federal law — or a regulation with criminal penalties — every week. The mail and wire fraud statutes are written so broadly that telling your mother a white lie about your past drug use over the phone can land you in jail for five years.

  4. Is this a signal to all of the administrations crony friends to start selling their shares in the Corporatist Prison Industrial Complex?

  5. Now is not the time to celebrate a major win for liberty. Obama is still in the White House!

    And if what I’m told is true, all presidents are equally evil, so when the next guy is in there, it still won’t be the time to care about civil liberties advancement, since there will still be a president in the White House to direct all our energy toward in the form of blind rage.

  6. This is the same administration that declared its intent to refrain from prosecuting medical marijuna in states where medical marijuna is legal. How is that going?

  7. “Hey! DEA! You’re killing the goose that laid the golden egg! Quit charging members from the middle class as if they were members of the lower classes!”

  8. my neighbor’s sister makes $72 every hour on the laptop. She has been out of a job for seven months but last month her income was $21905 just working on the laptop for a few hours. Read more on this site,,,,

    http://www.Rush60.com

  9. my buddy’s step-sister makes $72 an hour on the computer. She has been laid off for 8 months but last month her payment was $12918 just working on the computer for a few hours. Here’s the site to read more,,,,

    http://www.Rush60.com

  10. Far too many people have been making “big bucks” out of the War on Drugs. The technology of science based treatment that produces long-term results is available but not used to the extent needed. State and Federally funded programs are for the most part, antiquated. The technology developed by SAMHSA, CSAT, and CSAP should be mandated for the state and federally funded programs. If private practitioners use a individualized science-based program, so can the State Programs. As I see it, based on in depth true (not pseudo) research, marijuana is not addictive. The only reason it was ever put on the Class 1 list was an opinion made by Richard Nixon. Legalized, taxed, and regulated and at least 50% who misuse alcohol would switch to marijuana. THINK!
    My best estimate shows that this would save and make around $800 billion in GDP per year with industrial hemp included. THINK SOME MORE

  11. Why are the words, “we will not prosecute seriously ill people who use medical marijuana in strict compliance with state law” echoing in my mind when I read this story? Remember how well that turned out.

  12. Eric Holder wants to keep non-violent offenders out of prison, to make room for people who violate copyright or website terms-of-service.

  13. my co-worker’s sister-in-law makes $64 an hour on the internet. She has been without a job for five months but last month her income was $16482 just working on the internet for a few hours. Read more here Go to site and open Home for details
    http://WWW.JOBS31.COM

  14. my classmate’s sister-in-law makes $81 hourly on the computer. She has been laid off for 9 months but last month her pay check was $16375 just working on the computer for a few hours. Read more on this site http://www.max47.com

  15. my classmate’s sister-in-law makes $81 hourly on the computer. She has been laid off for 9 months but last month her pay check was $16375 just working on the computer for a few hours. Read more on this site http://www.max47.com

  16. discretionary application of the law is the ultimate power.

    once you outlaw everything…you are basically abusing citizens on a farce when you prosecute them.

    discretionary application of the law is the end of the line.

  17. like Sandra responded I’m shocked that some one can profit $9048 in one month on the internet. did you look at this link Go to site and open Home for details
    http://WWW.JOBS31.COM

  18. it is so sad BoSS… but LAW IS LAW

  19. my buddy’s step-sister makes $72 an hour on the computer. She has been laid off for 8 months but last month her payment was $12918 just working on the computer for a few hours. Here’s the site to read more,,,,

    http://xurl.es/jzta1

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