The U.S. Sentencing Commission’s unanimous vote in April 2014 to reduce sentencing guidelines two levels for certain defendants convicted of nonviolent drug crimes was a major step in cutting the federal prison terms of both the newly-convicted and those currently incarcerated. [See: PLN, Aug. 2014, p.26]. The action was hailed by the ACLU’s then-senior legislative counsel Jesslyn McCurdy.

“[O]ur country is slowly but steadily reversing the damage done by the failed, racially biased war on drugs,” she said. “Our criminal justice system is smarter, fairer, and more humane than it was a year ago, and we need to make sure momentum continues in the right direction.”

Former U.S. Attorney General (AG) Eric Holder wasted little time in ordering the guidelines change into effect. In a memo to U.S. prosecutors around the country, Holder called for the immediate implementation of the two-level sentencing reduction for drug offenders, even prior to its effective date in November 2015.

Holder was riding a public wave of pro-reform sentiment that indicated 63% of Americans agree it is time to move away from mandatory minimum sentencing, and 67% say the state and federal governments should focus on treatment rather than punishment. Even Congress, in a rare show of bipartisanship in recent years, has been working on a criminal justice reform bill, though it has recently stalled.

In a memo dated September 2014, Holder prohibited prosecutors from seeking “super” mandatory minimums for drug trafficking offenders. Prosecutors would use so-called “section 851 enhancements” to encourage defendants to plead guilty rather than go to trial. If the defendant rejected the plea offer, repeat offenders could face up to life in prison for nonviolent drug charges under section 851.

Although Holder stepped down in April 2015, he continued to advocate for drug sentencing reforms and alternatives to incarceration. In November 2015, during a public address, he urged Congress to take advantage of a “historic opportunity to improve the fairness and efficiency of our criminal justice system.” The former AG argued this was a civil rights issue, as the so-called War on Drugs and excessive sentences for nonviolent drug crimes have had a disproportionate impact on poor and minority defendants.

This put Holder in direct conflict with federal prosecutors, who, of course, think they are doing a fine job by locking up nonviolent offenders for decades. To illustrate, the National Association of Assistant U.S. Attorneys issued this statement: “We consider the current federal mandatory minimum sentence framework well-constructed and worth preserving.”

Fortunately, those holding such a draconian view are in the minority. Perhaps they are bemoaning the fact that, without a constant stream of drug offenders to prosecute and incarcerate, their inflated budgets and cushy jobs might be at risk.

According to an editorial published in the New York Times on April 21, 2016, by Jason Furman, chairman of the White House Council of Economic Advisors, and former Congressional Budget Office director Douglas Holtz-Eakin, “A growing body of research shows that incarceration and longer sentences could increase recidivism. Individuals may build criminal ties while incarcerated, lose their labor-market skills and confront substantial obstacles to re-entry after release. A new study finds that each additional year of incarceration increases the likelihood of re-offending by four to seven percentage points after release. The bottom line: The putative benefits of more incarceration or longer sentences are actually costs.”

They continued, “Incarceration plays an important role in promoting public safety, and imposing prison sentences for criminal conduct has moral and practical dimensions. But the criminal justice system should be designed to ensure that the benefits of incarceration exceed the costs. Individuals incarcerated for nonviolent drug crimes – 50 percent of the federal prison population – pose a low risk, and the costs of incarcerating these people outweigh the benefits.”

The current U.S. Attorney General, Loretta E. Lynch, appears to be following in her predecessor’s footsteps by urging federal judges to comply with the new sentencing guidelines.

Congress has shown itself receptive to sentence (and budget) reduction efforts with the introduction of the bipartisan Smarter Sentencing Act of 2015 (H.R. 920/S. 502), which doesn’t abolish mandatory minimums but would give federal judges more leeway to impose lenient sentences for certain nonviolent drug crimes, among other reforms.

According to Utah Senator Mike Lee, “Our current scheme of mandatory minimum sentences is irrational and wasteful,” and the Smarter Sentencing Act “takes an important step forward in reducing the financial and human cost of outdated and imprudent sentencing policies....”

Currently, the fate of federal criminal justice reform legislation hinges on a debate over whether to address offenses that lack a mens rea requirement – i.e., intent to commit a crime. The powerful criminal justice lobby funded by the Koch brothers, billionaire conservatives who want to change federal laws that primarily target white collar criminals, is pushing for mens rea reforms, while some lawmakers are leery.

Meanwhile, top officials within the FBI and DEA have suggested that the Obama administration’s criminal justice reform efforts might be leading to rising crime rates in some cities. Former AG Holder disagreed.

“Already, in fiscal year 2014, we saw the first reduction in the federal prison population in 32 years. Meanwhile, since President Obama took office, we’ve presided over a continued decline in the overall crime rate. This marks the first time that any administration has achieved side-by-side reductions in both crime and incarceration in more than forty years,” he stated.

Unfortunately, although Holder served in office from 2009 to 2015, he waited until the end of his tenure before addressing the problems in our nation’s dysfunctional criminal justice system. While his advocacy efforts are welcome – including his recent support for reclassifying marijuana as a Schedule I drug – they are too little and come too late. After leaving office to return to the white-collar defense firm of Covington & Burling, Holder is no longer in a position to directly influence federal criminal justice policies and practices as he was when he served as Attorney General.

Sources: www.aclu.org, www.washingtontimes.com, www.nytimes.com, www.washingtonpost.com, CNN, www.famm.org

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