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August 12, 2013

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 blogges.)

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:

August 12, 2013 at 11:03 AM | Permalink

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If this comes to pass:
"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.";
then I think I'll argue in my cases that predate such a change that the Court should "avoid unwarranted sentence disparities" and sentence the defendant to no more than the mandatory statutory minimum. Maybe I can incorporate some of Doug's scholarship in the Blewitt amicus brief.

Posted by: ? | Aug 12, 2013 11:37:51 AM

How about just not filing federal charges unless the crime fits one or more of those categories? States are perfectly capable of prosecuting drug crimes. If there is not a significant federal nexus, the feds should not be involved. Period.

Posted by: Ala JD | Aug 12, 2013 12:55:23 PM

Ala JD

I like your response.. Its the way things are supposed to be handled.
But out power hungry and over zerlous AUSA just get all pumped up on the sentences that they can issue, and actually get a judge to approve.

It happened in a state and if there isnot a snarly narly mulistate hangup why go federal....Its because they get a longer sentence and the states don't have to pay for it...Its our community fund. You know its all free anyway right, the endless federal budget MoneyPit that we have found Via China...We will see how long this flies.

No matter what, the federal system is not sustainable....Its going to topple, but will take Moses and a Plague so great that even the DOJ will have to free the people from bondage... Sound familiar.. Not too far fetched actually..

Posted by: MidWest Guy | Aug 12, 2013 1:28:36 PM

"Its going to topple, but will take Moses and a Plague so great that even the DOJ will have to free the people from bondage... Sound familiar.. Not too far fetched actually.."

Even then, DOJ will have a change of heart and pursue the people. It will take the Red Sea inundating the DOJ and their chariots and charioteers to make meaningful changes, like always telling the truth.

First off, get Congress to repeal the POS Adam Walsh Act as it is currently constructed.

PS: To prove that I am not a libtard, I would execute that other POS that killed his 12 year old niece in NH, if the facts as they are presented to the public are held up in court.

Posted by: albeed | Aug 12, 2013 2:52:14 PM

I'm glad to see this happening. But I think it would be better if Congress were to do it, rather than the Justice Dept.

Posted by: William Jockusch | Aug 12, 2013 4:26:06 PM

Oops, I should have said that Category III defendants in the scenario I described would see guideline ranges of 57-71 months, so technically, under the guidelines, the new policy would give them a 3 month leeway, if the DOJ would apply the new policy to someone in that category.

Posted by: C.E. | Aug 12, 2013 9:49:57 PM

I'm glad to see this happening. But I think it would be better if Congress were to do it, rather than the Justice Dept.

Congress already did it, by giving prosecutors the power to exercise the discretion that Holder is now exercising.

Posted by: Marc Shepherd | Aug 13, 2013 7:12:26 AM

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