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August 8, 2013

A preview of (big?) sentencing news coming soon from AG Eric Holder

I am intrigued to see this notable new CNN report headlined "Justice plans sentencing changes for non-violent criminals."  The report appears to provide a preview, of sorts, of a big speech discussing sentencing issues that Attorney General Eric Holder is expected to be making on Monday.  Here are some of the details:

The Justice Department is preparing an overhaul of how federal prosecutors deal with non-violent criminal offenders in a move that could mark the end of the tough-on-crime era, which began with strict anti-drug laws in the 1970s and accelerated with mandatory minimum prison sentences and so-called three-strikes laws.

The idea is to change the type of sentences that prosecutors seek in cases where instead of prison, offenders could benefit from alternatives such as drug court, a Justice Department official said.

While more flexible approaches to crime have long held support among liberal Democrats, fear of being tarred as weak on crime by Republican opponents has long caused moderate Democrats, particularly those running for president, to avoid the issue.

In recent years, however, some conservatives have begun pushing for some changes, using some of a few of the same buzzwords -- prison-industrial complex, for one -- to describe the inflexibility of the current criminal justice system. That's in part because reducing the prison population also could be a way to reduce budgets and reduce the size of government. More than a third of the Justice Department's annual budget is spent on prisons and detention.

Attorney General Eric Holder is expected to announce the initiative at a speech in San Francisco on Monday. Obama administration officials say the changes they are pursuing will not require congressional approval, although some lawmakers are pushing proposals to take similar steps....

The administration plans to highlight how states such as Texas and Georgia, led by Republicans, are using alternatives to prison to address the issue. By leading the effort, Holder, who has been the focus of criticism for conservatives during his more than four years in office, could find himself on the same side as many of his fiercest Republican critics.

Critics say the current criminal justice system has become bloated with many offenders locked up for non-violent drug offenses or technical probation violations such as not checking in with probation officers, not for committing new crimes.

Holder in an April speech noted the huge economic burden that incarceration carries for federal, state and local budgets: $83 billion in 2009 alone.... Holder, in his April speech to the National Action Network founded by Rev. Al Sharpton, highlighted many of the problems conservatives also cite in the criminal justice system. He noted that many prisoners aren't rehabilitated in prison and reoffend within years of serving their sentences.

August 8, 2013 at 06:45 PM | Permalink


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Well, there's good news and bad news. The bad news, from my point of view, is (1) "non-violent" is again being conflated with "non-harmful," which is a big mistake; and (2) druggies will now find that "low level involvement" didn't cost them much, so why not move right on up to something a little more lucrative?

The good news, again from my perspective, is that this is going to make it harder to pass the Leahy/Rand bill (which was probably in trouble anyway, because it lacked any qualifications on its breadth). With the sting now taken out of the argument that low-level druggies get sent away forever, you can already hear the air seeping out of the balloon.

Indeed, it's just possible that Holder -- who as I noted on an earlier thread is no dummy -- is doing this PRECISELY BECAUSE he knows it will take the air out of the Leahy/Paul bill, thus reducing the chance that his Democratic allies in Congress will have to cast a difficult vote.

I doubt that that's what's going on, but if it is, I have no choice to tip my hat to Holder's shrewdness.

Posted by: Bill Otis | Aug 8, 2013 7:16:35 PM

Or maybe Leahy and Paul are shrewd in planting a marker early so that the inevitable compromise is greater than they could have achieved if they had started with something modest.

Posted by: Thinkaboutit | Aug 8, 2013 9:03:46 PM

Thinkaboutit --

I care much less about what the length of the MM is than that the concept and the imposition of MM's remain as a brake on judges' willfulness and idiosyncrasies. We know from the Sixties and Seventies what 100% discretion for judges looks like (it looks like a spike in crime -- the push for determinate sentencing did not just come out of thin air). He who forgets the past, as they say.

That, and it's just not a good idea to give any one branch exclusive power. Checks and balances among the branches really do promote prudence.

As to the compromise.......I think Holder just produced it.

Posted by: Bill Otis | Aug 8, 2013 9:41:32 PM

Bill, I think we have to agree to disagree on this as I think mandatory minimums remove checks and balances, giving prosecutors unchecked authority. Having said that, I thought you presented your views very well this morning on NPR. P.S. If the length of mandatory minimums were truly minimums - what the least culpable offender convicted of that crime should serve - then I think there would be less controversy over them. But, as you know, members of Congress write the laws with the worst cases in mind and set the sentence for those offenders, ie, the debate in 1988 was about targeting kingpins. Do you think you could support Durbin-Lee's minimum sentence reductions (e.g. 5 to 2 years)?

Posted by: Thinkaboutit | Aug 8, 2013 11:04:44 PM

Thinkaboutit --

Thank you for your generous words.

I am still mulling this over. I thought the lady from FAMM made a point that could be the basis of a compromise all around. That is, we could modify the present safety valve by increasing the number of allowable criminal history points to 3. I might also be able to support lowering the MM's by maybe 20% to 25%. Other than that, though, I think the requirements of the present safety valve are perfectly reasonable.

As I hope to have established by recounting the horrible story of the man who beat to death a four year-old child, I remain convinced that Congress can and should set a floor below which the judge cannot go for very serious crimes, and to my mind that would include dealing in the hard drugs, among others.

By the way, I have been meaning to say this for a while now: I don't know the merits of your case, but I admire you for having the guts to take it to trial.

Posted by: Bill Otis | Aug 9, 2013 1:44:01 AM

Bill, thats a pretty good drop coming from you and your background..
Truely is, I didn't see that one coming...
Now lets change who gets the MM's...Kingpins Only.

Definition of a KIngPin is someone who deals in a very large scale.
Winnebago on I-94 full of weed. Trunk of an auto with 3-5 kilos of coke. Meth cook that does in excess of 50 grams weekly, not merely just a few big cooks.

In other words, its used sparringly and only for the worst of the worst.
Pare down Supervised Release by 50% and you don't go back for superficial violoations.. Missed a meeting or positive for alcohol..
or you quit your job or moved without prior notice...
They did their time..Lets see what they can do..The feds must stop this parental type view, we are superior and know whats best.

Hows that working on the fiscal side boys..

Posted by: MidWest Guy | Aug 9, 2013 10:51:52 AM

Thanks, Bill.

Posted by: Thinkaboutit | Aug 9, 2013 2:39:10 PM

Glad to see that the government is listening. From CNN August 12:

"Holder plans to announce [to the ABA convention] that he's instructing federal prosecutors not to charge garden-variety drug dealers with crimes that lead to lengthy mandatory minimum sentences.

"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," the attorney general plans to say.

Holder is also expected to announce that he's expanding efforts to reduce federal prison populations by releasing elderly prisoners sooner, by allowing local U.S. Attorneys not to prosecute some kinds of cases in federal court and by diverting "low-level offenders" to programs that keep them out of hardcore federal prisons.

The initiative is aimed at building on growing bipartisan momentum at the state level—and to a lesser intent in Congress—to retreat from some of the harshest anti-crime measures adopted in the 1990s. As fear of violent crime has dropped precipitously in recent years, critics of lengthy federal sentences are trying to capitalize on the intensifying pressure on the federal budget to persuade Republicans and conservative Democrats to consider measures that might have been attacked a couple of decades ago as soft on crime.

Such efforts at the state level have caused prison populations there to start dropping, but the federal prisoner count has continued to grow to more than 219,000."

Posted by: Michael R. Levine | Aug 12, 2013 6:28:33 AM

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