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Holder proposes changes in criminal justice system

Published August 12, 2013 4:13 pm

Drug crimes • Utah's Hatch urges caution in lessening minimum mandatory sentences.
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Washington • With the U.S. facing massive overcrowding in its prisons, Attorney General Eric Holder called Monday for major changes to the nation's criminal justice system that would scale back the use of harsh sentences for certain drug-related crimes.

In remarks to the American Bar Association in San Francisco, Holder said he also favors diverting people convicted of low-level offenses to drug treatment and community service programs and expanding a prison program to allow for release of some elderly, non-violent offenders.

"We need to ensure that incarceration is used to punish, deter and rehabilitate — not merely to convict, warehouse and forget," Holder said.

In one important change, the attorney general said he's altering Justice Department policy so that low-level, non-violent drug offenders with no ties to large-scale organizations, gangs or cartels won't be charged with offenses that impose mandatory minimum sentences.

Mandatory minimum prison sentences, a product of the government's war on drugs that began in the 1980s, limit the discretion of judges to impose shorter prison sentences.

Under the changed policy, the attorney general said defendants will be charged with offenses for which accompanying sentences "are better suited to their individual conduct, rather than excessive prison terms more appropriate for violent criminals or drug kingpins."

Holder's comments drew bipartisan support on Capitol Hill.

Sen. Rand Paul, R-Ky., said he is encouraged by the Obama administration's view that mandatory minimum sentences for non-violent offenders promote injustice and do not serve public safety. Paul and Senate Judiciary Committee chairman Patrick Leahy, D-Vt., introduced legislation in March to grant federal judges greater flexibility in sentencing all crimes where a mandatory minimum punishment is considered unnecessary. Leahy commended Holder for his efforts on the issue and said his committee will hold a hearing on the bill next month.

Sen. Dick Durbin, D-Ill., the No. 2 Democrat in the Senate, said he looks forward to working on the issue with Holder and senators on both sides of the aisle who support change.

Utah's senior Republican senator, Orrin Hatch, offered a mixed reaction to the attorney general's position.

Hatch has been a critic of what he says are gaps in the mandatory-minimum sentencing laws and passed legislation in 2010 to increase prison lengths for crack cocaine distribution while lessening the sentence for simple possession of that drug.

"A review of federal criminal sentencing guidelines has merit, but we need to ensure that the rights of victims of crimes are front and center in any debate or examination of mandatory minimums," Hatch said in response to Holder's remarks Monday. "The most important question is whether or not they've been effective at keeping violent criminals off the streets."

The impact of Holder's initiative on mandatory minimum sentences could be significant, says Marc Mauer, executive director of the Sentencing Project, a non-profit group involved in research and policy reform of the criminal justice system.

There are roughly 25,000 drug convictions in federal court each year and 45 percent of those are for lower-level offenses such as street level dealers and couriers and people who deliver drugs, said Mauer.

The unanswered question is how each of the 94 U.S. Attorneys offices around the country will implement changes, given the authority of prosecutors to exercise discretion in how they handle their criminal cases.

African-Americans and Hispanics likely would benefit the most from a change. African-Americans account for about 30 percent of federal drug convictions each year and Hispanics account for 40 percent, according to Mauer.

If state policymakers were to adopt similar policies, the impact of changes at the state level could be even broader, said Mauer. Currently, about 225,000 state prisoners are incarcerated for drug offenses, according to the U.S. Bureau of Justice Statistics. One national survey from 15 years ago by the Sentencing Project found that 58 percent of state drug offenders had no history of violence or high-level drug dealing.

"These proportions on state prisoners may have shifted somewhat since that time, but it's still likely that a substantial proportion of state drug offenders fall into that category today," said Mauer.

Federal prisons are operating at nearly 40 percent above capacity and hold more than 219,000 inmates — with almost half of them serving time for drug-related crimes and many of them with substance use disorders. In addition, 9 million to 10 million prisoners go through local jails each year. Holder praised state and local law enforcement officials for already instituting some of the types of changes Holder says must be made at the federal level.

Aggressive enforcement of federal criminal laws is necessary, but "we cannot simply prosecute or incarcerate our way to becoming a safer nation," Holder said. "Today, a vicious cycle of poverty, criminality and incarceration traps too many Americans and weakens too many communities. However, many aspects of our criminal justice system may actually exacerbate this problem, rather than alleviate it."

Holder said mandatory minimum sentences "breed disrespect for the system. When applied indiscriminately, they do not serve public safety. They have had a disabling effect on communities. And they are ultimately counterproductive."

Holder said new approaches — which he is calling the "Smart On Crime" initiative — are the result of a Justice Department review he launched early this year.

The attorney general said some issues are best handled at the state or local level and said he has directed federal prosecutors across the country to develop locally tailored guidelines for determining when federal charges should be filed, and when they should not.

"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 can become both smarter and tougher on crime," Holder said.

The attorney general said 17 states have directed money away from prison construction and toward programs and services such as treatment and supervision that are designed to reduce the problem of repeat offenders.

In Kentucky, legislation has reserved prison beds for the most serious offenders and refocused resources on community supervision. The state, Holder said, is projected to reduce its prison population by more than 3,000 over the next 10 years, saving more than $400 million.

He also cited investments in drug treatment in Texas for non-violent offenders and changes to parole policies which he said brought about a reduction in the prison population of more than 5,000 inmates last year. He said similar efforts helped Arkansas reduce its prison population by more than 1,400. He also pointed to Georgia, North Carolina, Ohio, Pennsylvania and Hawaii as states that have improved public safety while preserving limited resources.

Holder also said the department is expanding a policy for considering compassionate release for inmates facing extraordinary or compelling circumstances, and who pose no threat to the public. He said the expansion will include elderly inmates who did not commit violent crimes and who have served significant portions of their sentences.

Tribune reporter Thomas Burr contributed to this article.