Holder decision on sentencing reform: Where will it have the biggest impact?

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In a move that could signal the beginning of the end of the war on drugs, according to criminal justice reform advocates, U.S. Attorney General Eric Holder announced a policy shift on the sentencing of low-level drug offenders.

Speaking in San Francisco at the American Bar Association on Monday, Holder signaled a departure from punishment and warehousing of people to an emphasis on rehabilitation, reentry, prevention, and reform of a broken system.  He called for smart crime-fighting techniques, including a “new approach” to drug offenses that would reduce the use of harsh mandatory minimum sentencing.

“It’s clear – as we come together today – that too many Americans go to too many prisons for far too long, and for no truly good law enforcement reason,” Holder noted.  “It’s clear, at a basic level, that 20th-century criminal justice solutions are not adequate to overcome our 21st-century challenges.  And it is well past time to implement common-sense changes that will foster safer communities from coast to coast.”

‘This is our chance’

In a change in enforcement tactics rather than in the laws themselves, the attorney general instructed federal prosecutors to omit the quantities of illegal drugs when indicting minor, nonviolent drug offenders.  As a result, the mandatory minimum sentences would not be triggered, giving judges and prosecutors more discretion.  The impact—reducing America’s burgeoning prison population—is potentially great.  Holder believes that federal prosecutors should not charge every defendant who is accused of breaking federal law, as states and localities are better positioned to handle certain issues.  Further, Holder directed U.S. attorneys to create anti-violence strategies for severely crime-ridden areas.

“This is our chance – to bring America’s criminal justice system in line with our most sacred values,” Holder said.  “Today, a vicious cycle of poverty, criminality, and incarceration traps too many Americans and weakens too many communities.  And many aspects of our criminal justice system may actually exacerbate these problems, rather than alleviate them.”

The decriminalization of drugs and the reform of draconian sentencing receive bipartisan support.  There is a fiscal and economic reason behind such a policy shift.  According to Holder, massive incarceration imposes a high economic burden on the country, including $80 billion in 2010 alone, not to mention the incalculable human and moral costs.  “Ultimately, this is about much more than fairness for those who are released from prison.  It’s a matter of public safety and public good.  It makes plain economic sense,” Holder added.

The attorney general spoke out against the collateral consequences of crime, those regulations which impose further punishment on those convicted of crimes, such as restrictions on housing and employment. Further, Holder called for more funding for public defenders, urging Congress to end the forced budget cuts which have decimated indigent defense systems and threatened equal access to justice for the poor.

The bottom line is that, 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 re-entry.  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.

An ‘enormous step forward’

In an official statement, National Bar Association President Patricia Rosier stated, “The NBA has long been an advocate for reform relative to the disparities in mandatory prison sentencing that disproportionately impacts communities of color. We applaud Attorney General Holder’s statements today as they are the first step in confronting and extinguishing these disparities and inequalities that exist within our communities.”

Bryan Stevenson—a professor at NYU Law School and the founder and executive director of the Equal Justice Initiative—called the Holder speech an “enormous step forward” and “a very significant change.”  In an interview on the Rachel Maddow Show, Stevenson elaborated on the role of judicial and prosecutorial discretion in the federal drug laws.

“You know when we passed mandatory minimum laws everybody thinks that it eliminated discretion, but in fact it didn’t.  It took discretion away from judges and it actually gave it to prosecutors,” he said.  “And today the attorney general said he’s going to exercise that discretion in a way that actually reduces the number of people being sent to prison for these long prison sentences for low-level, nonviolent drug crimes,” Stevenson added.