Eric Holder Wants Less "Tough" and More "Smart" on Drug Sentencing

Since the 1980s, as a result of a conservative push to get "tough on crime," our criminal justice system has sometimes seemed to produce injustice almost as often as it produced justice. Sentencing laws mandating mandatory minimums, for example, left judges powerless to impose fair sentences. This resulted in mind-boggling tragedies, such as when Marissa Alexander was sentenced to 20 years in prison after firing a warning shot to ward off her enraged husband. The push to get tough on crime eventually meant that the United States — a country with 5% of the world's population — housed 25% of the world's prison population, with more people in prison than all of Europe combined.

At last, this insane situation is about to change.

In a speech at the American Bar Association's House of Delegates in San Francisco, Attorney General Eric Holder is expected to call for a saner justice system, a justice system that eschews the one-size-fits-all punishments developed during the tough-on-crime era in favor of more nuanced punishments, especially with regards to drug crime. Most significantly, "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."

"We must never stop being tough on crime. But we must also be smarter on crime," he is expected to say. "Too many Americans go to too many prisons for far too long, and for no good law-enforcement reason … 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."

Holder ordered all federal prosecutors to avoid drug charges mandating mandatory minimum sentences for low-level offenders by omitting the quantity of drugs when filing charges. 

In addition to the reduction in the use of mandatory minimums, Holder is also expected to call for an increase in "compassionate release" options for people in prison who pose no threat to public safety. 

"In late April, the Bureau of Prisons expanded the criteria which will be considered for inmates seeking compassionate release for medical reasons," Holder will say. "Today, I can announce additional expansions to our policy — including revised criteria for elderly inmates who did not commit violent crimes and have served significant portions of their sentences."

Of course, all this is not enough. Even after these changes, the U.S. will still criminalize crimes that almost no other country criminalizes. Prisons will still be overpopulated, though these changes should help alleviate that problem a bit. Sentences will still be longer for equivalent crimes than they are in other countries. And so on.

But this is a big step in the right direction, and after months, when I thought the Snowden-hunting, NSA-touting Obama administration had completely lost touch with its campaign promise — "change we can believe in" — I'm feeling pleasantly surprised. 

How much do you trust the information in this article?

Michael Shammas

Second-year Harvard Law student, politico, Breaking Bad fan, cynical idealist, coffee addict, & Duke sports fanatic. Contact me at mshammas@jd16.law.harvard.edu.

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