U.S. Attorney General Eric Holder has endorsed a proposal that would result in shorter prison sentences for many nonviolent drug offenders, saying the change would rein in runaway federal prison costs and create a fairer criminal justice system. Holder's support for a U.S. Sentencing Commission proposal to lower the sentencing guidelines is part of a broader Department of Justice (DOJ) effort to lessen punishment for nonviolent drug dealers. He has been speaking out against long mandatory sentences and calling for greater judicial discretion in sentencing, but is now doing so with greater specificity.
"This focused reliance on incarceration is not just financially unsustainable, it comes with human and moral costs that are impossible to calculate," Holder said in an appearance before the U.S. Sentencing Commission. The commission is responsible for establishing federal sentencing policies. "In a country where nearly half of all federal inmates are serving time for drug crimes, the harshest penalties should be reserved for violent drug defendants and criminals with long rap sheets," Holder proposed.
Holder directed prosecutors this past August to stop charging many nonviolent drug defendants with offenses that carry mandatory minimum sentences. "Too many Americans go to too many prisons for far too long, and for no good law enforcement reason," Holder then explained at a meeting of the American Bar Association. He also referred to the present sentencing scheme as "draconian."
Are Holder's calls for prison reform meant to merely bolster his image, or actually achieve change?
Holder further observed that "While the aggressive enforcement of federal criminal statutes remains necessary, we cannot simply prosecute or incarcerate our way to becoming a safer nation."
He has also said he wants to divert people convicted of low-level drug offenses to treatment and community-service programs and to expand a prison program which would allow the release of some elderly, non-violent offenders. There is also bipartisan legislation pending in Congress that would allow federal judges more discretion in the sentencing of defendants for drug crimes.
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Holder's proposed changes will likely do little to alter the federal government's policy of perpetuating mass incarceration
These are remarkable statements for a sitting attorney general, especially one who presides over the largest network of prisons the world has ever seen.
Many legal observers met the August directive with skepticism. Michael Nachmanoff, the federal public defender for the Eastern District of Virginia, said he initially was encouraged by Holder's guidance. Still, Nachmanoff said, he remained skeptical of whether the directive actually would restrain prosecutors in deciding how to charge their cases.
Federal defender Michael Nachmanoff expressed doubts about the net effect of Holder's proposed changes
"There's a real difference between general guidance from the attorney general and actually taking actions on the ground," Nachmanoff said. "Mandatory minimums are a very powerful tool for federal prosecutors."
Holder, a career federal prosecutor who prior to his latest stint with the Obama administration had shown a decided lack of interest in sentencing reform, has been accused by many of delivering a directive that was essentially empty. Critics feared that the ability to charge select offenders with lessor offenses would be abused by federal prosecutors and used solely as a reward for cooperating defendants. To many familiar with the federal criminal justice system, greater prosecutorial discretion simply invites greater abuse.
Holder has made similar statements in the past regarding federal sentencing, yet there have been no substantive change in the fed's policy of mass incarceration. He has talked about the need for bold steps, but has yet to make them. The latest pronouncement, while sounding significant, will result in what are often decades long sentences being shortened by an average of only 11 months. It is important to note that Holder's proposal would be applicable only to those yet to be sentenced. Relief for those already mired in the rapidly growing and grossly overcrowded federal prison system remains elusive.
Nevertheless, Holder's most recent statements regarding prison reform signal a real change to some. Laura W. Murphy, director of the American Civil Liberties Union's Washington Legislative Office, said the ACLU is "thrilled" by Holder's actions.
The ACLU's Laura Murphy spoke favorably of Holder's proposed changes
"These policies will make it more likely that wasteful and harmful federal prison overcrowding will end," Murphy said.
Matt Kaiser, a former public defender in Greenbelt and an adjunct professor of law at Georgetown University, applauded Holder for talking about "mass incarceration."
Defense counsel Matt Kaiser expressed reservations about how Holder's change in policy will affect the growing prison population
Kaiser's praise of Holder's latest actions was accompanied by a bit of genuine skepticism. "The problem is that when you look at why we have so many people in prison, especially at the federal level, what he is proposing is not likely to reduce those numbers," Kaiser said.
Kaiser's criticism appears to be well founded. Much of the problem is the glaring dichotomy between Holder's sudden desire to temper the pernicious effects of the federal criminal justice system and the zeal with which his underlings continue to pursue even the most trivial matters. For while Holder continues with his flowery statements on the harmful effects of mass incarceration, the assistant U.S. attorneys (AUSA's) under his command show little sign of following their boss' purported desire to temper the punishment that they dispense.
The National Association of Assistant United States Attorneys (NAAUSA), a group that represents about 1,300 of the DOJ's 5,600 federal prosecutors, has come out strongly in favor of maintaining the mandatory minimum status quo. In a letter to Holder, Robert Gay Guthrie, president of the NAAUSA, described minimum sentencing laws as "well-constructed and well worth preserving." According to a NAAUSA-conducted survey, only 15 percent of the nearly 650 federal prosecutors polled support the Smarter Sentencing Act. The survey also revealed that more than 80 percent of AUSA's interviewed do not believe the criminal justice system is "broken," as Holder has suggested. Prior to making their response to Holder, the NAAUSA had primarily concerned itself mainly with employment issues and shied away from matters of policy.
NAAUSA President Robert Guthrie claims that America's system of justice is in no need of reform
In the letter to Holder, Guthrie incredibly claimed that mandatory minimum sentences "reach only to the most serious of crimes." For Guthrie, the system singles out hardcore offenders and equips prosecutors with the tools necessary to "secure cooperation" from the accused. Mandatory minimums, he goes on, "establish uniformity and consistency in sentencing. They protect law-abiding citizens and help to hold crime in check."
David Zlotnick, a former AUSA who opposes mandatory minimum sentences, challenged the letter.
"This is a biased letter with an ulterior motive, to make federal prosecutors' jobs easier," he wrote. "Federal prosecutors should stand for justice and fairness as well as public safety. This letter and this organization's position are shortsighted and biased and do not represent the views of all prosecutors."
Zlotnick and other proponents of criminal justice reform argue that mandatory minimums are hardly reserved for those convicted of high-level offenses. Low-level street dealers and couriers often carry large enough quantities of drugs to trigger mandatory minimums, he said.
Former AUSA David Zlotnick was highly critical of the NAAUSA's opposition to Holder's proposal
As Zlotnick correctly observed, Guthrie's response to Holder is replete with the typical mendacity spewed by federal prosecutors. The letter insists that that the "merits of mandatory minimums are abundantly clear," baldly asserting that they only "target the most serious criminals." These claims are nonsensical to nearly anyone even remotely familiar with the ways in which AUSA's operate. Federal prosecutors typically overcharge even the least culpable of defendants in an effort to secure cooperation and deter the accused from pursuing their constitutionally guaranteed right to trial. Far from pursuing only "serious" criminals, federal prosecutors seeking to run up the score view even the most trivial offense as worthy of prosecution to the fullest extent allowed by law.
The real question that has yet to be answered is whether the inability to recognize the obvious problems with the federal criminal justice system signals an unwillingness of federal prosecutors to implement the largely discretionary changes suggested by Holder.
Holder's proposal to reform America's image as a "prison nation" has received bipartisan political support
Unfortunately, there are simply too many people with a vested interest in maintaining the status quo. In addition to federal prosecutors ruthlessly seeking advancement up the judicial corporate ladder, there are private prison corporations earning billions, as well as prison personnel, probation officers, and others who view a burgeoning prison system as a fantastic teat on which they can perpetually feed. Ensnaring as many people in the criminal justice system for as long as possible is what fuels the entire nefarious mechanism. The disincentive to correct the current path is enormous. Eric Holder's recent statements on sentencing reform are long overdue and sound positive, but he must certainly be aware of the forces which can be expected to resist such efforts. What it comes down to is whether he is merely making statements intended to polish his public persona, or preparing to actively fight for the reform in which he purportedly believes?