Attorney General Eric Holder appears to have served notice to his critics that he is not going anywhere soon by announcing a laundry list of criminal justice reforms in a speech to the American Bar Association (ABA) on Monday [Aug. 12]. At the top of the list is a sensible but likely controversial move to combat prison overcrowding by limiting the impact of harsh mandatory sentence provisions in run-of-the-mill federal drug cases.
In an address to the ABA’s House of Delegates, Holder correctly noted the expensive and counterproductive practice of overincarceration in the United States at the federal level and in many states. As Holder put it, the United States is “coldly efficient” at putting criminals behind bars and keeping them there. “Too many Americans go to too many prisons for far too long, and for no truly good law enforcement reason,” Holder said.
With the highest incarceration rate of any country, the United States houses almost one-fourth of the world’s prisoners but has only one-twentieth of the world’s population, Holder noted. The federal prison population has increased 800 percent since 1980 while the country’s population has increased only about one-third. The 219,000 federal inmates fill federal prisons 40 percent beyond their intended capacity.
Speaking in San Francisco, Holder passed over at least in his prepared text specific mention of California’s own severe prison crisis. Two years ago, the Supreme Court upheld a well-documented order by a three-judge federal court that the state reduce prison population to 110,000 or merely 30 percent above capacity. California Gov. Jerry Brown, once a liberal Democrat, insists the state has done enough by bringing the population down to 120,000. But the federal court refused to change its order and the Supreme Court earlier this month [Aug. 2] turned down the state’s appeal.
As Holder aptly noted, federal prison overcrowding has been driven by an increase in federal drug prosecutions and in particular by the long mandatory minimum sentences enacted by Congress in the 1980s and ’90s. Drug offenders comprise about half the federal prison population: some are in for serious drug trafficking, but many probably most are not. But the mandatory sentencing laws give judges little leeway for tempering the excesses that Congress has enacted.
Congress cannot repeal prosecutorial discretion, however. So Holder is moving to ease the sentencing law by directing U.S. attorneys in most cases to omit from formal charges the specific quantity of drug seized or sold and thus to avoid triggering the mandatory minimum prescribed for specified quantities. That policy, he said, will apply to low-level, nonviolent drug offenders who have no ties to large-scale organizations, gangs, or cartels.
Holder said the Justice Department is also revising its policies for considering compassionate release for inmates who pose no threat to the public. The Bureau of Prisons already in April expanded compassionate release for medical reasons. Holder announced a further expansion for elderly inmates who did not commit violent crimes and who have served “significant portions” of their sentences. In addition, the Justice Department is looking into expanding diversion programs such as drug treatment or community service programs that serve as effective alternatives to incarceration.
Fittingly, Holder, the first African American to serve as attorney general, also addressed the continuing racial disparity in sentencing between white and black inmates. He cited one report, released in February, that indicates black male offenders in recent years have received sentences nearly 20 percent longer than those imposed on white males convicted of similar crimes. “This isn’t just unacceptable,” Holder said. “It is shameful.” For now, the only reform is to direct a group of U.S. attorneys to examine the disparities and develop recommendations on how to address them.
Holder has been a political lightning rod, as almost any attorney general is bound to be. He reportedly considered leaving at the end of Obama’s first term, but agreed to the president’s request to stay. White House aides have grumbled, anonymously, that Holder has a political tin ear. As one example, Holder retreated in the face of overwhelming political opposition from his decision in November 2010 to try the accused 9/11 mastermind Khalid Sheikh Mohammed in a federal court in New York City. More recently, Holder antagonized the news media by allowing the Justice Department to issue an intrusive subpoena against the Associated Press in a leak investigation.
In announcing the criminal justice initiatives, however, Holder signaled that he and Obama are tied at the hip on the issues. Holder recalled Obama’s work on such issues as a community organizer and in the Illinois legislature. He also noted the administration’s successful efforts in Obama’s first term to reduce the racial disparity in sentencing for crack versus powdered cocaine. And he made clear that “the president and I” had discussed and decided on the actions being taken and the proposals being studied.
The inside-the-beltway speculation about Obama’s tenure resurfaced in the spring in, among other places, a long article in The New York Times [June 4]. Unnamed West Wing aides were described in the story as wishing that Holder would go. But his former spokeswoman Tracy Schmaler told the Times that Holder is determined to stay long enough to “accomplish what he would like to do so that he could leave on his own terms.”