WASHINGTON – Attorney General Eric Holder announced a major shift Monday in federal sentencing policies, targeting long mandatory terms that he said have flooded the nation's prisons with low-level drug offenders and diverted crime-fighting dollars that could be far better spent.
If Holder's policies are implemented aggressively, they could mark one of the most significant changes in the way the federal criminal justice system handles drug cases since the government declared a war on drugs in the 1980s
As a first step, Holder has instructed federal prosecutors to stop charging many nonviolent drug defendants with offenses that carry mandatory minimum sentences. His next step will be working with a bipartisan group in Congress to give judges greater discretion in sentencing.
"We will start by fundamentally rethinking the notion of mandatory minimum sentences for drug-related crimes," Holder told the American Bar Association in San Francisco.
There are currently more than 219,000 federal inmates, and the prisons are operating at nearly 40 percent above capacity. Holder said the prison population "has grown at an astonishing rate — by almost 800 percent" since 1980. Almost half the inmates are serving time for drug-related crimes.
Holder said he also wants to divert people convicted of low-level offenses to drug treatment and community service programs and expand a prison program to allow for release of some elderly, non-violent offenders.
The speech drew widespread praise, including from some of the people Holder will need most — Democrats and Republicans on Capitol Hill.
Sen. Rand Paul, R-Ky., said he is encouraged by the Obama administration's view that mandatory minimum sentences for non-violent offenders promote injustice and do not serve public safety. Paul and Senate Judiciary Committee chairman Patrick Leahy, D-Vt., have introduced legislation to grant federal judges greater flexibility in sentencing. Leahy commended Holder for his efforts on the issue and said his committee will hold a hearing on the bill next month.
Sen. Dick Durbin, D-Ill., the No. 2 Democrat in the Senate, said he looked forward to working on the issue with Holder and senators of both parties.
But support was not universal. House Judiciary Committee Chairman Bob Goodlatte, R-Va., said Holder "cannot unilaterally ignore the laws or the limits on his executive powers. While the attorney general has the ability to use prosecutorial discretion in individual cases, that authority does not extend to entire categories of people."
Sen. Chuck Grassley of Iowa, top Republican on the Senate Judiciary Committee, said whether the law needs to be changed should be decided by the Congress, along with the president.
"Instead we're seeing the president attempt to run roughshod over the direct representatives of the people elected to write the laws," Grassley said. "The overreach by the administration to unilaterally decide which laws to enforce and which laws to ignore is a disturbing trend."
Still, the impact of Holder's initiative could be significant, said Marc Mauer, executive director of the Sentencing Project, a private group involved in research and policy reform of the criminal justice system.
African-Americans and Hispanics probably would benefit the most from a change. African-Americans account for about 30 percent of federal drug convictions each year and Hispanics account for 40 percent, according to Mauer.
If state policymakers were to adopt similar policies, the impact of changes at the state level could be even broader. Currently, about 225,000 state prisoners are incarcerated for drug offenses, according to the U.S. Bureau of Justice Statistics. One national survey from 15 years ago by the Sentencing Project found that 58 percent of state drug offenders had no history of violence or high-level drug dealing.
"These proportions on state prisoners may have shifted somewhat since that time, but it's still likely that a substantial proportion of state drug offenders fall into that category today," said Mauer.
In a three-page memo to all 94 U.S. Attorneys' offices around the country, Holder said rising prison costs have resulted in reduced spending on law enforcement agents, prosecutors and prevention and intervention programs.
"These reductions in public safety spending require us to make our public safety expenditures smarter and more productive," the memo stated.
In some cases where a defendant is not an organizer, leader, manager or supervisor of others, "prosecutors should decline to pursue charges triggering a mandatory minimum sentence," Holder's memo stated.
In his speech to the ABA, the attorney general said "we need to ensure that incarceration is used to punish, deter and rehabilitate — not merely to convict, warehouse and forget."
Holder said new approaches — which he is calling the "Smart On Crime" initiative — are the result of a Justice Department review he launched early this year.
The attorney general said that some issues are best handled at the state or local level and that he has directed federal prosecutors across the country to develop locally tailored guidelines for determining when federal charges should be filed and when they should not.
He said 17 states have directed money away from prison construction and toward programs and services such as treatment and supervision that are designed to reduce the problem of repeat offenders.
In Kentucky, legislation has reserved prison space for the most serious offenders and refocused resources on community supervision. The state, Holder said, is projected to reduce its prison population by more than 3,000 over the next 10 years, saving more than $400 million.
He also cited investments in drug treatment in Texas for non-violent offenders and changes to parole policies which he said have brought about a reduction in the prison population of more than 5,000 last year. He said similar efforts helped Arkansas reduce its prison population by more than 1,400. He also pointed to Georgia, North Carolina, Ohio, Pennsylvania and Hawaii as states that have improved public safety while preserving limited resources.
San Francisco County District Attorney George Gascon applauded Holder's speech.
"It's obviously a big shift in policy," Gascon said. "Now let's see how the follow through works."
In a state experiencing severe prison overcrowding, Gascon has been advocating "alternative" sentencing of low-level drug offenders since taking office as district attorney in January 2011. He previously served as the city's police chief. Last week, the Supreme Court refused to delay the early release of nearly 10,000 California inmates by year's end to ease overcrowding at 33 adult prisons.
Praising Holder's efforts, Laura W. Murphy, director of the American Civil Liberties Union's Washington Legislative Office, said the attorney general "is taking crucial steps to tackle our bloated federal mass incarceration crisis."
Julie Stewart, president of Families Against Mandatory Minimums, said, "For the past 40 years, the Department of Justice, under both political parties, has promoted mandatory minimum sentencing like a one-way ratchet."
Former federal appeals court judge Timothy Lewis recalled that he once had to sentence a 19-year-old to 10 years in prison for conspiracy for being in a car where drugs were found. Lewis, a former prosecutor, said the teen, who was African-American, was on course to be the first person in his family to go to college. Instead, Lewis had to send him to prison as the teen turned and screamed for his mother.
"I am just glad that someone finally has the guts to stand up and do something about what is a pervasively racist policy," said Lewis, who is African-American.