Reports have been coming out for the past few days that Attorney General Eric Holder will make a major announcement today at the ABA Annual Meeting. From the New York Times:
Attorney General Eric H. Holder Jr., in a speech at the American Bar Association’s annual meeting in San Francisco on Monday, is expected to announce the new policy as one of several steps intended to curb soaring taxpayer spending on prisons and help correct what he regards as unfairness in the justice system, according to his prepared remarks.
Saying that “too many Americans go to too many prisons for far too long and for no good law enforcement reason,” Mr. Holder is planning to justify his policy push in both moral and economic terms.
Just when this epiphany occurred to Holder is unclear, given the length of his term of office, but today appears to be the day and, well, better late than never, and at least the epiphany came to him before he left office and was relegated to the status of “former.”
“Although incarceration has a role to play in our justice system, widespread incarceration at the federal, state and local levels is both ineffective and unsustainable,” Mr. Holder’s speech says. “It imposes a significant economic burden — totaling $80 billion in 2010 alone — and it comes with human and moral costs that are impossible to calculate.”
A mere 26 years into the sentencing guidelines and already the government realizes that its war on drugs is unsustainable? Nothing gets by these guys. So what does he plan to do about it?
Under a policy memorandum being sent to all United States attorney offices on Monday, according to an administration official, prosecutors will be told that they may not write the specific quantity of drugs when drafting indictments for drug defendants who meet the following four criteria: their conduct did not involve violence, the use of a weapon or sales to minors; they are not leaders of a criminal organization; they have no significant ties to large-scale gangs or cartels; and they have no significant criminal history.
Or to put it another way, by not specifying a drug quantity, Holder will circumvent the mandatory minimums that would otherwise require five and ten-year sentences, provided the defendants aren’t deemed unworthy of the largesse as a result of their history or specific conduct in the case. It’s unclear whether this means their individual conduct or the conduct of the conspiracy at large.
Let’s be charitable and assume the best, that the government will grow a conscience and stop putting the foot soldiers, the mules, the minor and minimal players, away for 121 months just because they can. Will it work? Will it change anything? Or the bigger question, is this the beginning of dismantling the machinery of the War on Drugs?
On the one hand, this confirms the worst of claims that government prosecutors wield too much power, that their charging decisions alone force the hands of the judiciary to dispose of defendants whose actual crimes may be insignificant by sentences of decades rather than years or months. Is that all there is to the fix, an executive branch decision to simply stop doing what Congress commands?
The quantity would still factor in when prosecutors and judges consult sentencing guidelines, but depending on the circumstances, the result could be a sentence of less than the 10 years called for by the mandatory minimum law, the official said.
There were rare cases where a guidelines calculation would put a defendant below 121 months, but the court is saddled with the 10 year mandatory minimum, and so 121 months was imposed. In a post-Booker world, however, where the guidelines themselves are no longer mandatory, where below-guidelines sentences happen with some regularity as judges acknowledge the insanity of the length of sentences under the drug tables, the elimination of the statutory quantity from the indictment that compelled mandatory minimums to kick in could well produce sentences well below the norm of 121 months.
But there remains an enormous gap, huge, between what Holder appears to be saying and what similarly appears will be the outcome. Holder’s speech, his new policy, appears to suggest that it’s time to stop incarcerating low-level people at all. Prison is not the answer for everyone. It’s cost, financial, human and moral, can no longer be tolerated. Fair enough.
Yet, while these changes may result in shorter sentences, will they result in non-incarceratory sentences? And if they do, for how many defendants? There seems to be a strong element to Holder’s plan that plays into the hands of people who draw a significant distinction between the deserving and undeserving defendant, the low-level person on the periphery of crime to feed starving children as opposed to the drug kingpin, who everyone agrees belongs in SuperMax forever.
Here’s the unfortunate reality. There are very, very few drug kingpins, and most people involved in drug dealing fall somewhere along the spectrum of mildly pathetic to relatively sympathetic. Quantities of drugs never worked as a valid differentiator, but since that was how the laws and guidelines operated, it became the tool by which defendant’s were separated.
At the same time, whether a defendant will fall into that mythical Jean Valjean category remains largely a matter of noblesse oblige and rhetoric. Somewhere along the conspiracy, somebody will have sold dope to kids or used violence, and it becomes a choice for prosecutors to decide whether to taint the defendant or not. Yet again, it’s left in the hands of prosecutors to decide a defendant’s worthiness.
But while Holder’s plan may be slightly delayed, have gaps, and be overly reliant on the goodwill of Justice, it is something that matters enormously in a larger sense: this is the first time in more than a generation that anyone in a position of power has stepped forward to say that our tough-on-crime society has gone too far, and it’s time to reverse course.
That alone makes this speech huge. The next question is whether this is the first step in a journey that will reverse the harm and destruction caused by the inane War on Drugs, or just a stutter step until the next election. While this will hardly “fix” the problem, it’s may be a real sign that the pendulum could swing back to sanity.
Update: In a twit, Horace Rumpole @JusticeBuilding notes:
I am suspicious of the new DOJ policy on drugs. My guess is prosecutors won’t seek min mans unless person goes to trial-
Excellent observation. So will relief from mandatory minimums, at the discretion of the prosecution while the law would dictate otherwise, serve as another wedge to force pleas by superseding indictment that includes the alleged drug quantity should the defendant not sufficiently appreciate the graciousness of the DOJ and be so impudent as to go to trial? A damn good point.