Holder: “Too Many Americans Go to Too Many Prisons for Far Too Long”
Attorney General Eric Holder has officially unveiled a major policy shift to help certain low-level drug offenders avoid harsh mandatory minimum prison sentences. In an address to the American Bar Association, Holder confronted the issue of mass incarceration, noting that while the United States comprises just 5 percent of the world’s populations, it houses nearly a quarter of the world’s prisoners. Among other changes, Holder touted an expansion of the “compassionate release” program for some elderly prisoners. And he announced a review of racial sentencing disparities, citing a recent study that found black men received sentences nearly 20 percent longer than those imposed on white men convicted of similar crimes.
Eric Holder: “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. It’s clear — as we come together today — that too many Americans go to too many prisons for far too long, and for no truly good law enforcement reason.”
Monday, August 12, 2013
Some sentencing-related highlights from AG Holder’s remarks today to the ABA
Eric Holder, US Attorney General
I am back on line, and now able to link to and provide some extensive excerpts from Attorney General Eric Holder’s high-profile remarks earlier today at the Annual Meeting of the American Bar Association’s House of Delegates. Everyone should make time to read AG Holder’s remarks in full, but below I will try to excerpt those portions likely to be of greatest interest and import for sentencing fans. Here goes (with apologies at how much text is excerpted, and with some of my very favorite text in bold and even italics):
In so many ways, today’s ABA is reminding us that, although our laws must be continually updated, our shared dedication to the cause of justice — and the ideals set forth by our Constitution — must remain constant. It is this sense of dedication that brings me to San Francisco today — to enlist your partnership in forging a more just society. To ask for your leadership in reclaiming, once more, the values we hold dear. And to draw upon the ABA’s legacy of achievement in calling on every member of our profession to question that which is accepted truth; to challenge that which is unjust; to break free of a tired status quo; and to take bold steps to reform and strengthen America’s criminal justice system – in concrete and fundamental ways.
It’s time — in fact, it’s well past time – to address persistent needs and unwarranted disparities by considering a fundamentally new approach. As a prosecutor, a judge, an attorney in private practice, and now, as our nation’s Attorney General, I’ve seen the criminal justice system firsthand, from nearly every angle. While I have the utmost faith in — and dedication to — America’s legal system, we must face the reality that, as it stands, our system is in too many respects broken. The course we are on is far from sustainable. And it is our time — and our duty — to identify those areas we can improve in order to better advance the cause of justice for all Americans.
Even as most crime rates decline, we need to examine new law enforcement strategies —and better allocate resources — to keep pace with today’s continuing threats as violence spikes in some of our greatest cities. As studies show that six in ten American children are exposed to violence at some point in their lives — and nearly one in four college women experience some form of sexual assault by their senior year — we need fresh solutions for assisting victims and empowering survivors. As the so-called “war on drugs” enters its fifth decade, we need to ask whether it, and the approaches that comprise it, have been truly effective — and build on the Administration’s efforts, led by the Office of National Drug Control Policy, to usher in a new approach. And with an outsized, unnecessarily large prison population, we need to ensure that incarceration is used to punish, deter, and rehabilitate — not merely to warehouse and forget.
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.
It’s clear — as we come together today — thattoo many Americans go to too many prisons for far too long, and for no truly good law enforcement reason. It’s clear, at a basic level, that 20th-century criminal justice solutions are not adequate to overcome our 21st-century challenges. And it is well past time to implement common sense changes that will foster safer communities from coast to coast.
These are issues the President and I have been talking about for as long as I’ve known him — issues he’s felt strongly about ever since his days as a community organizer on the South Side of Chicago. He’s worked hard over the years to protect our communities, to keep violent criminals off our streets, and to make sure those who break the law are held accountable. And he’s also made it part of his mission to reduce the disparities in our criminal justice system. In Illinois, he passed legislation that addressed racial profiling and trained police departments on how they could avoid racial bias. And in 2010, this Administration successfully advocated for the reduction of the unjust 100-to-1 sentencing disparity between crack and powder cocaine….
Over the next several months, the President will continue to reach out to Members of Congress from both parties — as well as governors, mayors, and other leaders — to build on the great work being done across the country to reduce violent crime and reform our criminal justice system. We need to keep taking steps to make sure people feel safe and secure in their homes and communities. And part of that means doing something about the lives being harmed, not helped, by a criminal justice system that doesn’t serve the American people as well as it should.
At the beginning of this year, I launched a targeted Justice Department review of the federal system — to identify obstacles, inefficiencies, and inequities, and to address ineffective policies. Today, I am pleased to announce the results of this review — which include a series of significant actions that the Department has undertaken to better protect the American people from crime; to increase support for those, who become victims; and to ensure public safety by improving our criminal justice system as a whole. We have studied state systems and been impressed by the policy shifts some have made. I hope other state systems will follow our lead and implement changes as well. The changes I announce today underscore this Administration’s strong commitment to common sense criminal justice reform. And our efforts must begin with law enforcement.
Particularly in these challenging times — when budgets are tight, federal sequestration has imposed untenable and irresponsible cuts, and leaders across government are being asked to do more with less — coordination between America’s federal, state, local, and tribal law enforcement agencies has never been more important. It’s imperative that we maximize our resources by focusing on protecting national security, combating violent crime, fighting against financial fraud, and safeguarding the most vulnerable members of our society.
This means that federal prosecutors cannot — and should not —bring every case or charge every defendant who stands accused of violating federal law. Some issues are best handled at the state or local level. And that’s why I have today directed the United States Attorney community to develop specific, locally-tailored guidelines — consistent with our national priorities — for determining when federal charges should be filed, and when they should not.
I’ve also issued guidance to ensure that every case we bring serves a substantial federal interest and complements the work of our law enforcement partners. I have directed all U.S. Attorneys to create — and to update — comprehensive anti-violence strategies for badly afflicted areas within their districts. And I’ve encouraged them to convene regular law enforcement forums with state and local partners to refine these plans, foster greater efficiency, and facilitate more open communication and cooperation.
By targeting the most serious offenses, prosecuting the most dangerous criminals, directing assistance to crime “hot spots,” and pursuing new ways to promote public safety, deterrence, efficiency, and fairness — we in the federal government can become both smarter and tougher on crime. By providing leadership to all levels of law enforcement — and bringing intelligence-driven strategies to bear — we can bolster the efforts of local leaders, U.S. Attorneys, and others in the fight against violent crime.…
Fifty years ago last March, this landmark ruling [in Gideon] affirmed that every defendant charged with a serious crime has the right to an attorney, even if he or she cannot afford one. Yet America’s indigent defense systems continue to exist in a state of crisis, and the promise of Gideon is not being met. To address this crisis, Congress must not only end the forced budget cuts that have decimated public defenders nationwide — they must expand existing indigent defense programs, provide access to counsel for more juvenile defendants, and increase funding for federal public defender offices. And every legal professional, every member of this audience, must answer the ABA’s call to contribute to this cause through pro bono service — and help realize the promise of equal justice for all.
As we come together this morning, this same promise must lead us all to acknowledge that — although incarceration has a significant role to play in our justice system —widespread incarceration at the federal, state, and local levels is both ineffective and unsustainable. 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.
As a nation, we are coldly efficient in our incarceration efforts. While the entire U.S. population has increased by about a third since 1980, the federal prison population has grown at an astonishing rate — by almost 800 percent. It’s still growing – despite the fact that federal prisons are operating at nearly 40 percent above capacity. Even though this country comprises just 5 percent of the world’s population, we incarcerate almost a quarter of the world’s prisoners. More than 219,000 federal inmates are currently behind bars. Almost half of them are serving time for drug-related crimes, and many have substance use disorders. Nine to 10 million more people cycle through America’s local jails each year. And roughly 40 percent of former federal prisoners — and more than 60 percent of former state prisoners — are rearrested or have their supervision revoked within three years after their release, at great cost to American taxpayers and often for technical or minor violations of the terms of their release.
As a society, we pay much too high a price whenever our system fails to deliver outcomes that deter and punish crime, keep us safe, and ensure that those who have paid their debts have the chance to become productive citizens. Right now, unwarranted disparities are far too common. As President Obama said last month, it’s time to ask tough questions about how we can strengthen our communities, support young people, and address the fact that young black and Latino men are disproportionately likely to become involved in our criminal justice system — as victims as well as perpetrators.
We also must confront the reality that — once they’re in that system — people of color often face harsher punishments than their peers. One deeply troubling report, released in February, indicates that – in recent years – black male offenders have received sentences nearly 20 percent longer than those imposed on white males convicted of similar crimes. This isn’t just unacceptable — it is shameful. It’s unworthy of our great country, and our great legal tradition. And in response, I have today directed a group of U.S. Attorneys to examine sentencing disparities, and to develop recommendations on how we can address them.
In this area and many others — in ways both large and small — we, as a country, must resolve to do better. 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.
I am also announcing today that I have directed every U.S. Attorney to designate a Prevention and Reentry Coordinator in his or her district — to ensure that this work is, and will remain, a top priority throughout the country. And my colleagues and I will keep working closely with state leaders, agency partners, including members of the Federal Interagency Reentry Council – and groups like the American Bar Association — to extend these efforts.
In recent years, with the Department’s support, the ABA has catalogued tens of thousands of statutes and regulations that impose unwise and counterproductive collateral consequences — with regard to housing or employment, for example — on people who have been convicted of crimes. I have asked state attorneys general and a variety of federal leaders to review their own agencies’ regulations. And today I can announce that I’ve directed all Department of Justice components, going forward, to consider whether any proposed regulation or guidance may impose unnecessary collateral consequences on those seeking to rejoin their communities.
The bottom line is that, while the aggressive enforcement of federal criminal statutes remains necessary, we cannot simply prosecute or incarcerate our way to becoming a safer nation. To be effective, federal efforts must also focus on prevention and reentry. We must never stop being tough on crime. But we must also be smart and efficient when battling crime and the conditions and the individual choices that breed it.
Ultimately, this is about much more than fairness for those who are released from prison. It’s a matter of public safety and public good. It makes plain economic sense. It’s about who we are as a people. And it has the potential to positively impact the lives of every man, woman, and child — in every neighborhood and city — in the United States. After all, whenever a recidivist crime is committed, innocent people are victimized. Communities are less safe. Burdens on law enforcement are increased. And already-strained resources are depleted even further.
Today — together — we must declare that we will no longer settle for such an unjust and unsustainable status quo. To do so would be to betray our history, our shared commitment to justice, and the founding principles of our nation. Instead, we must recommit ourselves — as a country — to tackling the most difficult questions, and the most costly problems, no matter how complex or intractable they may appear. We must pledge — as legal professionals — to lend our talents, our training, and our diverse perspectives to advancing this critical work. And we must resolve — as a people — to take a firm stand against violence; against victimization; against inequality — and for justice.
This is our chance — to bring America’s criminal justice system in line with our most sacred values. This is our opportunity — to define this time, our time, as one of progress and innovation. This is our promise —to forge a more just society.
And this is our solemn obligation, as stewards of the law, and servants of those whom it protects and empowers: to open a frank and constructive dialogue about the need to reform a broken system. To fight for the sweeping, systemic changes we need. And to uphold our dearest values, as the ABA always has, by calling on our peers and colleagues not merely to serve their clients, or win their cases — but to ensure that —in every case, in every circumstance, and in every community — justice is done.
August 12, 2013 in Criminal justice in the Obama Administration, Drug Offense Sentencing, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Scope of Imprisonment, Who Sentences? | Permalink | Comments (3) | TrackBack
More reporting on (and now seeking reactions to) AG Holder’s big sentencing speech
I am about to head off-line for the next few hours, and the conspiracy theorist in me lead me to think that DOJ has been reading my e-mail and that AG Eric Holder specifically decided to give his big sentencing speech to the ABA exactly when he knew I would be unable to blog about it. Man, those socialist-fascists running this administration sure our sneaky!
Jokes aside, today’s Holder speech is clearly a big deal for a bunch of reasons, and I am pleased to see that the New York Times already has up this new lengthy story based on its text, now running under the headline “Justice Dept. Seeks to Curtail Stiff Drug Sentences.” Here are some more details:
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….
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….
“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.”…
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.
Of course, the devil (and the real impact of all this) will be in the details. When I have the opportunity later tonight, I will be sure to post a link to the full copy of the Holder speech, and I also will try to get posted a copy of this important new policy memorandum being sent to all United States attorney offices on Monday. (I am hopeful that DOJ will post both item on this official web page shortly, as there seems to be a lot of justified media interest in these topics, and not just among sentencing addled blogs.)
As I have already said to a few reporters, what may prove most important for the impact of what Holder does may be how other important persons inside and outside the Beltway react to this speech and its various policy elements. Will members of Congress, for example, publically praise Holder for what he says and will they say additional legislation is needed (or no longer needed) in response? Will federal judges make sure to allow defense attorneys to “enforce” this new policy in some way? Will the US Sentencing Commission alter is planned priorities for the coming year for guideline reforms based on both the themes and specifics in the Holder speech?
Exciting times! (Perhaps too exciting, and perhaps it is a good thing I will be off line until late tonight!)
Some recent and older related posts about AG Holder’s speech the new federal politics of sentencing:
- “With Holder In The Lead, Sentencing Reform Gains Momentum”
- AG Holder to announce new charging policies to avoid some drug mandatories
- “NAACP, right-wing foes get friendly” when it comes to prison costs
- “Conservatives latch onto prison reform”
- NAACP head recognizes Tea Party favors some progressive criminal justice reforms (and sometimes more than Democrats)
- “Prison-Sentence Reform: A bill to give judges flexibility to impose shorter sentences deserves conservatives’ support.”
- Wall Street Journal pitch for the Prez to get behind the Justice Safety Valve Act of 2013
- Justice Safety Valve Act gets bipartisan introduction in House of Representatives
- “Bipartisan Legislation To Give Judges More Flexibility For Federal Sentences Introduced”
- Rand Paul begins forceful pitch in campaign against federal mandatory minimums
- Another notable GOP member of Congress advocating for federal sentencing reform
- “As Prisons Squeeze Budgets, GOP Rethinks Crime Focus”
- Could significant federal criminal justice reforms become more likely if the GOP wins Senate in 2014?
August 12, 2013 in Criminal justice in the Obama Administration, Drug Offense Sentencing, Elections and sentencing issues in political debates, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (5) | TrackBack
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