By Alan Bean
In a speech delivered to the American Bar Association, Attorney General Eric Holder signaled that the Obama administration wants to move away from the philosophy of mass incarceration.
Holder’s analysis of the criminal justice system is reminiscent of Michelle Alexander’s The New Jim Crow except that Alexander’s bold racial claims are softened considerably. Nonetheless, the AG acknowledged that the criminal justice system is systematically unfair to people of color.
The speech highlighted three particular initiatives: those designed to cut down on the incarceration of low-level, non-violent drug offenders with no association to major drug cartels; policies designed to expand the compassionate release of aging prisoners who pose no threat to public safety; and encouraging alternatives to incarceration.
Holder clearly understands that we are locking up far, far too many people and appears to understand that the costs go far beyond the inordinate price tag that comes with mass incarceration:
Today, a vicious cycle of poverty, criminality, and incarceration traps too many Americans and weakens too many communities. And many aspects of our criminal justice system may actually exacerbate these problems, rather than alleviate them.
I was pleased to hear the AG acknowledge that federal prosecutors are making too many federal criminal cases. Having covered a number of federal cases, Alvin Clay, the Colomb family, Ramsey Muniz, and the IRP-6, I know how easy it can be for the federal government to make a weak case stick. Federal prosecutors have been handed sweeping powers that translate into a 98% conviction rate. They can’t simply indict a ham sandwich–add a little mustard, and they can get a conviction!
It will be interesting to see if Holder’s critique of mindless prison expansion impacts the immigration system in a meaningful way.
Finally, I was pleased to note that Holder has given the blessing of the Obama administration to the sentencing reforms currently enjoying bi-partisan support in Congress.
Below, I have pasted the conclusion to Holder’s groundbreaking call for a new criminal justice regime, but I urge you read the entire speech.
The President and I agree that it’s time to take a pragmatic approach. And that’s why I am proud to announce today that the Justice Department will take a series of significant actions to recalibrate America’s federal criminal justice system.
We will start by fundamentally rethinking the notion of mandatory minimum sentences for drug-related crimes. Some statutes that mandate inflexible sentences – regardless of the individual conduct at issue in a particular case – reduce the discretion available to prosecutors, judges, and juries. Because they oftentimes generate unfairly long sentences, they breed disrespect for the system. When applied indiscriminately, they do not serve public safety. They – and some of the enforcement priorities we have set – have had a destabilizing effect on particular communities, largely poor and of color. And, applied inappropriately, they are ultimately counterproductive.
This is why I have today mandated a modification of the Justice Department’s charging policies so that certain low-level, nonviolent drug offenders who have no ties to large-scale organizations, gangs, or cartels will no longer be charged with offenses that impose draconian mandatory minimum sentences. They now will be charged with offenses for which the accompanying sentences are better suited to their individual conduct, rather than excessive prison terms more appropriate for violent criminals or drug kingpins. By reserving the most severe penalties for serious, high-level, or violent drug traffickers, we can better promote public safety, deterrence, and rehabilitation – while making our expenditures smarter and more productive. We’ve seen that this approach has bipartisan support in Congress – where a number of leaders, including Senators Dick Durbin, Patrick Leahy, Mike Lee, and Rand Paul have introduced what I think is promising legislation aimed at giving federal judges more discretion in applying mandatory minimums to certain drug offenders. Such legislation will ultimately save our country billions of dollars while keeping us safe. And the President and I look forward to working with members of both parties to refine and advance these proposals.
Secondly, the Department has now updated its framework for considering compassionate release for inmates facing extraordinary or compelling circumstances – and who pose no threat to the public. In late April, the Bureau of Prisons expanded the criteria which will be considered for inmates seeking compassionate release for medical reasons. Today, I can announce additional expansions to our policy – including revised criteria for elderly inmates who did not commit violent crimes and who have served significant portions of their sentences. Of course, as our primary responsibility, we must ensure that the American public is protected from anyone who may pose a danger to the community. But considering the applications of nonviolent offenders – through a careful review process that ultimately allows judges to consider whether release is warranted – is the fair thing to do. And it is the smart thing to do as well, because it will enable us to use our limited resources to house those who pose the greatest threat.
Finally, my colleagues and I are taking steps to identify and share best practices for enhancing the use of diversion programs – such as drug treatment and community service initiatives – that can serve as effective alternatives to incarceration.
Our U.S. Attorneys are leading the way in this regard – working alongside the judiciary to meet safety imperatives while avoiding incarceration in certain cases. In South Dakota, a joint federal-tribal program has helped to prevent at-risk young people from getting involved in the federal prison system – thereby improving lives, saving taxpayer resources, and keeping communities safer. This is exactly the kind of proven innovation that federal policymakers, and state and tribal leaders, should emulate. And it’s why the Justice Department is working – through a program called the Justice Reinvestment Initiative – to bring state leaders, local stakeholders, private partners, and federal officials together to comprehensively reform corrections and criminal justice practices.
In recent years, no fewer than 17 states – supported by the Department, and led by governors and legislators of both parties – have directed funding away from prison construction and toward evidence-based programs and services, like treatment and supervision, that are designed to reduce recidivism. In Kentucky, for example, new legislation has reserved prison beds for the most serious offenders and re-focused resources on community supervision and evidence-based alternative programs. As a result, the state is projected to reduce its prison population by more than 3,000 over the next 10 years – saving more than $400 million.
In Texas, investments in drug treatment for nonviolent offenders and changes to parole policies brought about a reduction in the prison population of more than 5,000 inmates last year alone. The same year, similar efforts helped Arkansas reduce its prison population by more than 1,400. From Georgia, North Carolina, and Ohio, to Pennsylvania, Hawaii, and far beyond – reinvestment and serious reform are improving public safety and saving precious resources. Let me be clear: these measures have not compromised public safety. In fact, many states have seen drops in recidivism rates at the same time their prison populations were declining. The policy changes that have led to these welcome results must be studied and emulated. While our 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.
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.