Attorney General Holder Recommends New Sentencing Approach for Drug Offenses

In a speech to the American Bar Association on August 12, U.S. Attorney General Eric Holder contrasted what he termed as inadequate “20th century” approaches to criminal justice with the Justice Department’s new proposals for “smarter,” “evidence-based” solutions.

Holder spoke of the need to direct limited crime-fighting resources toward violent offenses and to increase the use of incarceration alternatives for offenders who do not pose a safety threat. In light of the “outsized, unnecessarily large prison population,” the criminal justice system and communities “need to ensure that incarceration is used to punish, deter, and rehabilitate – not merely to warehouse and forget.”

The Attorney General announced a series of recommendations intended to “intelligence-driven strategies,” including:

• Modifying guidelines for “mandatory minimum sentences for drug-related crimes.” The inflexibility of current sentencing standards has resulted in the costly incarceration of nonviolent offenders who might be better served by treatment programs. In response, Holder has altered “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. . . . 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.”
• An intent to enhance “the use of diversion programs – such as drug treatment and community service initiatives – that can serve as effective alternatives to incarceration.” Holder’s endorsement of diversion programs for nonviolent offenders echoes recommendations from other federal agencies, such as the National Transportation Safety Board, which has urged the use of drug courts and 24/7 Sobriety Programs for cost-effective, long-term solutions to the crime of impaired driving.

Holder summed up by stating, “while the aggressive enforcement of federal criminal statutes remains necessary, we cannot simply prosecute or incarcerate our way to becoming a safer nation.  To be effective, federal efforts must also focus on prevention and reentry.  We must never stop being tough on crime.  But we must also be smart and efficient when battling crime and the conditions and the individual choices that breed it.”

Reactions to the speech

These recommendations have earned support on both sides of the political aisle. Reducing the prison population and associated costs, using a more local approach to criminal charges and sentencing, and applying evidence-based solutions are popular with lawmakers in both blue and red states.

But some are arguing that the proposals represent few actual changes to current practices. In an article for Slate.com, Emily Bazelon notes, “Prosecutors always have discretion over which crimes to charge. They’re looking at a menu of statutes. They can pick the one that means they’re throwing the book at you, or not. In some cases, they already don’t indict in a way that triggers a mandatory minimum.” In fact, she states “the attorney general is merely centralizing the decision-making that already occurs.”

One of the biggest questions the speech raised is how will the proposals impact people already behind bars? Cora Currier at ProPublica points out that “Holder’s initiative has little to offer prisoners already behind bars. He directed prosecutors to avoid charges that carried mandatory minimum sentences for certain low-level, nonviolent drug offenders and urged the passage of legislation to change those sentencing requirements. But in 2010, there were more than 75,000 people in federal custody that had been given mandatory sentences.”

To further complicate the issue, an opinion piece for the Delaware News Journal argues that offenders who are currently incarcerated for non-violent crimes create a unique challenge because “there is much anecdotal evidence that petty drug users and dealers, who posed no public threat before incarceration, leave prison as more experienced criminals.”

As AP reporter Pete Yost notes, ultimately, “The unanswered question is how each of the 94 U.S. Attorneys offices around the country will implement changes, given the authority of prosecutors to exercise discretion in how they handle their criminal cases.”

What do you think about these proposals? Are they a smarter approach to sentencing and incarceration? How do you think they will impact your jurisdiction?