In a major shift in criminal justice policy, the Obama administration has moved to ease overcrowding in federal prisons by ordering prosecutors not to list quantities of illegal substances in indictments for low-level drug cases, sidestepping federal laws that impose strict mandatory minimum sentences for drug-related offenses.
Attorney general Eric Holder, in a speech at the American Bar Association's annual meeting in San Francisco, announced 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 justified his policy push in moral and economic terms.
“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,” he said. “It imposes a significant economic burden – totalling $80 billion in 2010 alone – and it comes with human and moral costs that are impossible to calculate.”
State courts
Mr Holder also introduced a related set of justice department policies that would leave more crimes to state courts to handle, increase the use of drug-treatment programmes as alternatives to incarceration, and expand a programme of "compassionate release" for "elderly inmates who did not commit violent crimes and have served significant portions of their sentences".
Mr Holder’s speech yesterday deplored the moral impact of the US’s high incarceration rate: although it has only 5 per cent of the world’s population, it has 25 per cent of its prisoners, he noted. But he also attempted to pre-empt political controversy by painting his effort as following the lead of prison reform attempts in primarily conservative-led southern states.
Under a policy memorandum being sent to all US attorney offices, 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 organisation; they have no significant ties to large-scale gangs or cartels; and they have no significant criminal history.
For example, in the case of a defendant accused of conspiring to sell kilogrammes of cocaine – an amount that would trigger a 10-year mandatory minimum sentence – the prosecutor would write that “the defendant conspired to distribute cocaine” without saying how much. 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, said the official .
It is not clear whether current cases that have not yet been adjudicated would be recharged because of the new policy. Amid a rise in crime rates a generation ago, state and federal lawmakers began passing a series of “tough on crime” laws, including mandatory minimum sentences for drug possession.
But as crime rates have plummeted to 40-year lows and reduced the political potency of the fear of crime, fiscal pressures from the exploding cost of building and maintaining prisons have prompted states to find alternatives to incarceration. Driven in part by a need to save money, several conservative-leaning states such as Texas and Arkansas have experimented with finding ways to incarcerate fewer low-level drug offenders. The answers have included reducing prison terms for them or diverting them into treatment programmes, releasing elderly or well-behaved inmates early and expanding job training and re-entry programmes.
Ideological divide
The policy is seen as successful across the ideological divide. For example, in Texas, which was an early innovator, taxpayers have saved hundreds of millions of dollars on what had been projected as a need to build prison space. With crime rates remaining at generational lows, the space is no longer necessary.
“While the federal prison system has continued to slowly expand, significant state-level reductions have led to three consecutive years of decline in America’s overall prison population – including, in 2012, the largest drop ever experienced in a single year,” said Mr Holder. “Clearly, these strategies can work. They’ve attracted overwhelming, bipartisan support in ‘red states’ as well as ‘blue states.’ And it’s past time for others to take notice.”
Mr Holder's speech marched through a litany of statistics about incarceration. The American population has grown by about a third since 1980, he said, but its prison rate has increased nearly 800 per cent. At federal level, more than 219,000 inmates are currently behind bars – almost half for drug-related crimes – and the prisons are operating at nearly 40 per cent above their official capacity. – (New York Times)