Justice Dept Seeks To Curtail Stiff Drug Sentences

Aug 12, 2013

In a major shift in crim­i­nal jus­tice pol­icy, the Obama admin­is­tra­tion will move on Mon­day to ease over­crowd­ing in fed­eral pris­ons by order­ing pros­e­cu­tors to omit list­ing 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 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. “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.” Mr. Holder will also intro­duce a related set of Jus­tice Depart­ment poli­cies that would leave more crimes to state courts to han­dle, increase the use of drug-treatment pro­grams as alter­na­tives to incar­cer­a­tion, and expand a pro­gram of “com­pas­sion­ate release” for “elderly inmates who did not com­mit vio­lent crimes and have served sig­nif­i­cant por­tions of their sen­tences.” The pol­icy changes appear to be part of Mr. Holder’s effort, before he even­tu­ally steps down, to bol­ster his image and legacy. Tur­moil over the Con­gres­sional inves­ti­ga­tion into the botched Oper­a­tion Fast and Furi­ous gun traf­fick­ing case ensnared him in the Obama administration’s first term, and more recently, con­tro­versy has flared over the department’s aggres­sive tac­tics in leak inves­ti­ga­tions. In recent weeks, he has also tight­ened rules on obtain­ing reporters’ data in leak cases and started an effort to strengthen pro­tec­tions for minor­ity vot­ers after the Supreme Court struck down part of the Vot­ing Rights Act of 1965. The move con­tin­ued an assertive approach to vot­ing rights and other civil rights enforce­ment through­out his tenure. Mr. Holder’s speech on Mon­day deplores the moral impact of the United States’ high incar­cer­a­tion rate: although it has only 5 per­cent of the world’s pop­u­la­tion, it has 25 per­cent of its pris­on­ers, he notes. But he also attempts to pre-empt polit­i­cal con­tro­versy by paint­ing his effort as fol­low­ing the lead of prison reform efforts in pri­mar­ily conservative-led South­ern states. 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. For exam­ple, in the case of a defen­dant accused of con­spir­ing to sell five kilo­grams of cocaine — an amount that would set off 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, the offi­cial said. 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 like 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 pro­grams, releas­ing elderly or well-behaved inmates early, and expand­ing job train­ing and re-entry pro­grams. 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. Sev­eral years ago, a group called Right on Crime formed to push what it calls the “con­ser­v­a­tive case for reform.” Its Repub­li­can affil­i­ates include Jeb Bush, a for­mer Florida gov­er­nor; Edwin R. Meese III, an attor­ney gen­eral dur­ing the Rea­gan admin­is­tra­tion; and Newt Gin­grich, a for­mer House speaker. “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,” Mr. Holder’s speech says. “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.” Still, in states that have under­taken prison and parole over­hauls, the changes were approved by state law­mak­ers. Mr. Holder’s reform is dif­fer­ent: instead of going through Con­gress for leg­is­la­tion to mod­ify manda­tory min­i­mum sen­tenc­ing laws, he is invok­ing his power of pros­e­cu­to­r­ial dis­cre­tion to side­step them. Ear­lier in Mr. Obama’s pres­i­dency, the admin­is­tra­tion went through Con­gress to achieve pol­icy goals like reduc­ing the sen­tenc­ing dis­par­ity between crack and pow­der forms of cocaine. But it has increas­ingly pur­sued a strat­egy of invok­ing uni­lat­eral exec­u­tive pow­ers with­out Con­gress, which the White House sees as bogged down by Repub­li­can obstruc­tion­ism. Pre­vi­ous exam­ples, like Mr. Obama’s deci­sion last year to issue an exec­u­tive order allow­ing immi­grants who came to the United States ille­gally as chil­dren to remain with­out fear of depor­ta­tion and to work, have drawn fire from Repub­li­cans as “power grabs” that usurp the role of Con­gress. Mr. Holder’s speech marches through a litany of sta­tis­tics about incar­cer­a­tion in the United States. The Amer­i­can pop­u­la­tion has grown by about a third since 1980, he said, but its prison rate has increased nearly 800 per­cent. At the fed­eral level, more than 219,000 inmates are cur­rently behind bars — nearly half for drug-related crimes — and the pris­ons are oper­at­ing at nearly 40 per­cent above their offi­cial capac­ity. A ver­sion of this arti­cle appeared in print on August 12, 2013, on page A1 of the New York edi­tion with the head­line: Dept. Of Jus­tice Seeks To Cur­tail Stiff Drug Terms. Source: New York Times (NY) Author: Char­lie Sav­age Pub­lished: August 12, 2013 Copy­right: 2013 The New York Times Com­pany Con­tact: letters@​nytimes.​com Web­site: http://​www​.nytimes​.com/

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