Will Holder’s Half-a-Loaf Fix It? (Update)

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.

19 thoughts on “Will Holder’s Half-a-Loaf Fix It? (Update)

  1. John Burgess

    If I understand this correctly, by not specifying amounts, DOJ short-circuits the verdicts that would require mandatory minimums do the the quantities involved. This will be DOJ policy. Until DOJ changes it policy.

    It has no bearing (other than whatever moral suasion DOJ can muster with state and county prosecutors) on state laws. Nor does it provide any useful instruction to judges who see the War on Drugs[TM] as the most important issue since the Crusades.

    Holder didn’t ask for a change in laws concerning drugs; he wouldn’t dare. This announcement, then, isn’t much more than a tantalizing fan-dance that suggests far more than it actually produces.

    Have I got that right?

    1. SHG Post author

      While I would put it as not triggering the mandatory minimums rather than short-circuiting verdicts, yes, you have it right.

      There are two pieces of pending legislation that also seek to move away from the tough on crime sentencing regimen, so it’s not just Holder or the executive branch, but if there is to be a shift in momentum, particularly a bi-partisan one so that neither fears being called out as soft on crime, the AG must be on board. It may not be much, but it remains a pretty bold move to finally openly buck the trend.

      1. Jordan Rushie

        As a libertarian, I think there is one huge problem – the attitude of “machismo” that dominates the Republican party. I have never seen anything from the GOP that would make me believe they are interested in doing something sensible rather than continue to pander to the lowest common denominator.

        They will continue down the path of “drugs are bad, and we need to get tough on crime” while wasting billions of taxpayer dollars on prisons and a militarized police force.

        I thought after Romney’s catastrophic campaign the GOP would start to wise up by moving away from the stupid and moving towards libertarian / conservative concepts, but I’ve seen nothing from them to suggest that.

        1. SHG Post author

          Given the conservative involvement in the “right on crime” movement, I suspect that the administration has thought long and hard about whether this is a politically palatable move and believes it is. Of course, time will tell, and probably pretty quickly. We’ll see what all loyal opposition has to say about it on the evening news.

        2. Onlooker

          The fact that articles questioning the wisdom of the drug war, and even outright calling for an end to such, have lately been showing up in National Review and The American Conservative, gives me some hope for a change in course for the GOP.

          But the jury’s certainly still out.

  2. Wheeze The People™

    But what about the children?!? . . . of the workers of the incarceration-industrial complex?? . . .

    Will we let these kids starve instead of feeding their parents more, not less, grist for the mill?? . . .

    Ours is a cruel society, indeed . . .

    1. SHG Post author

      Your concern for the children is heartwarming, but don’t fear the prisons will be empty and the offspring of screws will starve. There will always be prison unions to protect them.

      1. Wheeze The People™

        Are you implying that if the prisons emptied somewhat, the unions will find good and productive uses for the empty space and freed-up guards, like inviting the still well-fed children to the prisons for tea parties with the parents?? That sounds like real fun!! . . .

          1. Wheeze The People™

            What, no free clowns for the children?!? I thought free clowns were guaranteed by the U.S. Constitution. I smell a strike or, even worse yet, a prison riot, coming down the road . . .

            And it’s so necessary, as I heard John Wayne Gacy makes free appearances, er um, nevermind . . . the bollocks . . .

            (BTW — the math problems are getting harder. Is that by intelligent design??)

  3. Alex Bunin

    Until the guidelines stop marching in step with the mandatory minimums this is all meaningless. Absent some other reduction, like minimal role, the mere absence of mandatory minimums will rarely reduce sentences except before charitable judges in places like EDNY.

    1. SHG Post author

      That’s the problem with having actual experience with guidelines sentencing, you realize how the puzzle fits together and how tweaking one small bit does so little to change the scheme.

  4. Ken Bellone

    The math problems may be getting harder, but I am fine with that. I am just pleased that they’re math problems and not law questions, otherwise, non-attorneys like me would lose the ability to chime in on occasion.

    SHG does his level best to ensure that fools like me stick to the topic or I get “the hammer”. I don’t mind, writing more concisely is an art. I respect that, and have no desire to be “the nail”.

  5. Gloria Wolk

    Lobbyists for the private for-profit prisons are going to be busier than ever.

    Someone needs to try to educate Holder that shifting more than one thousand women prisoners from Danbury, CT to a remote, inaccessible prison in Alabama is cruel and unusual punishment. But it is a multimillion dollar, empty prison. So what if the children of these women are not able to visit? Family values and prisons are oxymorons.

    1. SHG Post author

      The move from Danbury to Alabama is an absolute outrage and disgrace. But Shelby got his prison, the jobs and only needs a few women from Connecticut to make it all pay off. Just horrible.

  6. Leo

    The more I learn about the criminal justice system, criminal offenses, and sentencing guidelines, the angrier I become.

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