The "so-called war on drugs" has needlessly imprisoned thousands of Americans for relatively minor crimes, Attorney General Eric Holder said Monday in a San Francisco speech announcing Obama administration policy changes that will reduce or possibly eliminate federal sentences for some low-level drug offenders.
While Holder ordered federal prosecutors to reduce their use of mandatory sentencing laws in drug cases, the impact of his order will depend on such unpredictable factors as how prosecutors interpret the new rules and whether Congress decides to add flexibility to rigid sentencing laws.
"Too many Americans go to too many prisons for far too long and for no truly good law enforcement reason," Holder told delegates to the annual meeting of the American Bar Association at Moscone West.
The United States, he noted, has 5 percent of the world's population but about 25 percent of its prisoners. And the federal prison population has soared by nearly 800 percent since 1980, to more than 219,000 inmates - nearly half serving time for drug-related crimes.
With crime rates falling, however, state governments in Texas, Kentucky and Arkansas have cut back on imprisonment to save money. California, ordered by federal courts to improve prison health care by reducing overcrowding, has sentenced 24,000 low-level felons to county jail instead of state prison since October 2011.
The Obama administration won congressional passage in 2010 of legislation reducing the racially charged sentencing disparities for crimes involving crack and powder cocaine. The changes Holder announced Monday are potentially much broader and rely less on Congress.
Holder said the nation's criminal justice system is "in too many respects broken" and singled out various aspects for criticism - the "coldly efficient" drive to increase incarceration, the "school-to-prison pipeline" in which students can be jailed for disciplinary offenses, and "shameful" racial disparities in sentencing.
Mandatory sentences
But the principal change he announced was in prosecutions that lead to mandatory sentences for the possession and sale of certain quantities of illegal drugs regardless of the circumstances of the case. For example, growing 100 marijuana plants or possessing 28 grams of crack, slightly less than an ounce, for the purpose of sale carries a mandatory five-year sentence, while 50 grams of methamphetamine requires 10 years.
Tens of thousands of federal inmates have been sentenced under those laws, and the sentences have occasionally drawn protests from the federal judges who are legally required to impose them.
"Because they oftentimes generate unfairly long sentences, (mandatory minimums for drugs) breed disrespect for the system," Holder said. "When applied indiscriminately, they do not serve public safety."
He said he has ordered the nation's federal prosecutors to stop seeking mandatory minimum sentences for "certain low-level, nonviolent drug offenders who have no ties to large-scale organizations, gangs or cartels." Charges against those defendants would not specify the amount of drugs involved, leaving judges free to choose their sentences.
Neither Holder's speech nor a Justice Department summary of the changes defined such terms as "low-level" and "large-scale organizations," decisions that apparently will be left to the regional U.S. attorney's offices - and may determine the scope of the new policy.
Federal prosecutors, for example, could work around Holder's order by deciding that most accused drug sellers must have some connection to a larger organization, making them ineligible for lower sentences.
Prosecutors' discretion
"At least hundreds and arguably thousands of new criminal cases will be affected. It may be up to individual prosecutors whether it's hundreds or thousands," said Douglas Berman, a law professor at Ohio State University and a specialist in criminal sentencing. He noted that Holder's policy applied only to new prosecutions and not to inmates already sentenced.
Bill Piper, director of national affairs for the Drug Policy Alliance, said Holder "made a very bold speech, but the impact will depend on how the Department of Justice implements it and how Congress reacts."
One bill that Holder endorsed, sponsored by Sens. Patrick Leahy, D-Vt., and Rand Paul, R-Ky., would give judges some flexibility to impose lesser drug sentences. Another, by Sens. Dick Durbin, D-Ill., and Mike Lee, R-Utah, would reduce some current mandatory minimum sentences. Their prospects of passage are uncertain.
"It's time for Congress to act," said Julie Stewart, president of the advocacy group Families Against Mandatory Minimums. She said Holder's announcement was a welcome change after 40 years of support for such sentences from administrations of both parties.
Favoring treatment
San Francisco District Attorney George Gasc
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Holder urges easing mandatory drug sentences
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