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August 7, 2013

"With Holder In The Lead, Sentencing Reform Gains Momentum"

The title of this post is the headline of this notable new NPR piece, which includes lots of notable quotes from Attorney General Eric Holder.  Here are excerpts:

Sit down with the attorney general to ask him about his priorities, , and he'll talk about voting rights and national security. But if you listen a bit longer, Eric Holder gets to this: "I think there are too many people in jail for too long and for not necessarily good reasons."

This is the nation's top law enforcement officer calling for a sea change in the criminal justice system. And he's not alone. Over the past few weeks, lawmakers have introduced bipartisan measures that would give judges more power to shorten prison sentences for nonviolent criminals and even get rid of some mandatory minimum terms altogether.

"The war on drugs is now 30, 40 years old," Holder said. "There have been a lot of unintended consequences. There's been a decimation of certain communities, in particular communities of color."

That's one reason why the Justice Department's had a group of lawyers working behind the scenes for months on proposals the attorney general could present as early as next week in a speech to the American Bar Association in San Francisco.

Some of the items are changes Holder can make on his own, such as directing U.S. attorneys not to prosecute certain kinds of low-level drug crimes or spending money to send more defendants into treatment instead of prison. Almost half of the 219,000 people currently in federal prison are serving time on drug charges.

"Well we can certainly change our enforcement priorities, and so we have some control in that way," Holder said. "How we deploy our agents, what we tell our prosecutors to charge, but I think this would be best done if the executive branch and the legislative branch work together to look at this whole issue and come up with changes that are acceptable to both."

Late last week, two senators — Illinois Democrat Dick Durbin and Utah Republican Mike Lee — moved in that direction. Their bill, called the Smarter Sentencing Act of 2013, would give judges more discretion to sentence nonviolent criminals below the so-called mandatory minimums. It would also lower mandatory minimums for several drug crimes to lower costs and cut down on crowding in a prison system that's estimated to be operating at 40 percent over capacity.

The chairman of the Senate Judiciary Committee, Vermont Democrat Patrick Leahy, says he'll hold a hearing on mandatory minimums next month. "They all sound like a great stop-crime idea when they were passed," Leahy said on the C-SPAN Newsmakers program Sunday. "Most of them sound better on paper than in practice."

His partner in that effort is Republican Rand Paul, a Tea Party favorite from Kentucky. They've introduced their own legislation, the Justice Safety Valve Act of 2013, to give judges more power to impose lower sentences — and not just in drug crimes. "Doing away with mandatory minimums, giving more discretion to judges, that shouldn't be Republican or Democrat," Leahy added. "It just makes good sense."

The idea has already taken off in nearly two dozen states including Arkansas, Kentucky and Texas, where it won support from prominent conservatives including Grover Norquist, part of a coalition known as Right on Crime. "It's easier to say, 'Let's spend a few dollars a day managing you at your home where you can spend time with your family, where you can work, instead of hundreds of dollars a day, keeping you in a cell,'" Norquist said in a video on the group's web site.

And the Justice Department explicitly pointed to state reform efforts in a letter to the U.S. Sentencing Commission in July. The old system, wrote official Jonathan Wroblewski, is being replaced with the idea that budgets are "finite," prison is a power that should be "exercised sparingly and only as necessary" and that "reducing reoffending and promoting effective reentry are core goals."

August 7, 2013 at 09:40 AM | Permalink


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Sounds great, But: More has been allocated for AUSA's and Judges and significantly less for Public definders.

So its just another smoke screen, its not going to happen...

Has anyone seen anything that indicates such. Didn't think so.
Holder can talk the talk, but the walk we've yet to see..

Posted by: MidWest Guy | Aug 7, 2013 11:21:25 AM

It's all true. Eric Holder is a liberal and has a liberal agenda. Liberals of my generation (and Eric Holder is of my generation) have a nostalgic and romanticized view of drugs, a view left over from their college days. It's not a very realistic view -- nostalgia seldom is, as by definition it fails to keep up with the times -- but it's a strong force nonetheless.

And yes, Holder's view of things is being abetted by Tea Party/libertarian types like Rand Paul. Whether Holder embraces the strict libertarian view that ALL drugs should be legalized, no matter how destructive and addictive, I don't know. I tend to doubt it. But he's plainly of the view that, even if the agenda of legalization for everything cannot be implemented, it can be partly implemented by legalization lite -- i.e., simply slack off on enforcement.

The President himself has decided not to enforce the employer mandate of the ACA, a law he worked his tail off to get passed. I think I read somewhere that the President is charged with faithful execution of the laws, but, hey, look, I understand that such antiquated nostrums do not apply to liberal Presidents. I would therefore be foolish to believe that a mere subordinate, Eric Holder, would feel like he has to enforce the law either.

Don't get me wrong. As I have often said here, this is a democracy and majority rules. Obama won the election and is free to appoint an Attorney General who wants to make drug use easier, and thus more common, by reducing its legal risks. So the AG we have now is free to furrow his brow about "community decimation" -- which I take it is his phrase for people who go to jail for doing stuff they know, but don't care, is illegal (and is a lot easier than getting a normal job) -- but just snoozes through such unpleasant realities as overdose deaths.

P.S. It doesn't hurt Mr. Holder's chances of getting a really, really fat job after he leaves office to curry favor with the bigshots who run the ABA. The man is no fool.

Posted by: Bill Otis | Aug 7, 2013 11:50:47 AM

With all due respect Bill, politics has nothing to do with it. Simply do what works.

Posted by: Tom McGee | Aug 7, 2013 1:27:39 PM

Tom --

I worked at DOJ in both career and political positions, and under administrations of both parties. If you actually think that politics has nothing to do with the Attorney General's policies, you are naïve beyond my capacity to help.

Posted by: Bill Otis | Aug 7, 2013 1:41:01 PM

Bill, I'm not talking about the Attorney General and politics, I'm talking about sentencing. That's the subject here--sentencing

Posted by: Tom McGee | Aug 7, 2013 2:58:05 PM

Tom --

The subject here, according to Doug, is "With Holder In The Lead, Sentencing Reform Gains Momentum." In other words, it's about Holder and sentencing, and specifically about Holder's effect on sentencing "reform."

I would make only two brief points. First, every big thing the AG does is influenced by politics (and I have no problem with this, since he's a political officer). Second, sentencing, and particularly its emphasis over the last 20 years on incarceration, is hardly the disaster it's portrayed as being. The most important measure of the success of sentencing is the crime rate, not the complaints of those who get sentenced. Looking at the crime rate, the one thing that cannot be said of sentencing is that it's a disaster. You simply do not get the dramatic reduction in crime that we've had if your criminal justice system -- sentencing included -- is a disaster.

The reason it gets complained about so much on this board is that the comments section is dominated by defense lawyer types, not by the broader swath of people who benefit, quietly but substantially, from having a lot less crime to worry about.

Posted by: Bill Otis | Aug 7, 2013 3:26:40 PM


Why so bitter? Any time there are reports about forward-looking efforts to address over-incarceration, you respond with snark and sacrasm. Is it truly only the political liberals in your generation who did drugs? More importantly, what does that have to do with anything? Right thinking folks are looking to solve a huge problem here, not re-live Greeks versus freaks spats from the 60s and 70s. The fact is there are many out there seeking to apply more rigor, expertise, and scholarship and less emotion, political nonsense, and pandering to the know-nothings to the incarceration debate. You claim to be an expert in this field, but seem to want no part of that, prefering ad hominin attack that add nothing to the debate. Perhaps it is a diversionary tactic? Or perhaps you just enjoy bringing misery and locking up people who don't need to be there (as reflected in your outrageous and shameful comments in the comments regarding Lynne Stewart). Professor Berman has the patience of Job not to bar you from commenting.

Posted by: Alan | Aug 7, 2013 5:54:05 PM

I thought we were a constitutional republic so that majority rule (mob rule) has less meaning and power (ideally). I know that this administration breaks the law frequently!

Bill, go prosecute!

Posted by: albeed | Aug 7, 2013 5:56:09 PM

It's beginning to look as if opposing sentencing reform can be equated with standing in front of an on coming train.

It is true, the Justice Department is not leading the way. AG Holder is attempting to get to the front of the parade before it leaves without this administration. I would applaude him for this. Government should not be so out of synch with citizens who grant them the power to govern.

Sentencing reform and ending the "War" on drugs is not only a liberal or progressive agenda. Indeed, they are somewhat behind their libertarian colleagues. This is about civil liberties, justice and fiscal responsibility.

Posted by: beth | Aug 7, 2013 6:52:21 PM

Alan --

"Why so bitter?"

You mistake acceptance of democratic outcomes with which I disagree for bitterness.

"Any time there are reports about forward-looking efforts to address over-incarceration..."

Translation: "Any time there are reports that we should adopt policies that will pave the way to increased use of dangerous drugs..."

"Is it truly only the political liberals in your generation who did drugs?"

Nope. But is by far the liberals, more than others, who now have a romanticized view of doing them, which is what I actually said.

"Right thinking folks..."

Translation: "Me and my pals..."

"...are looking to solve a huge problem here..."

I am not of the view that the massive reduction in crime, to which incarceration has significantly contributed, is a huge problem. The justice system is expensive, sure, as is any major social effort, although not anywhere near as expensive as other social efforts that have not been nearly as successful.

"...pandering to the know-nothings..."

You can complain to the Dean about my ignorance. My student evaluations seem to be pretty good, however. Come audit the course and learn something.

"Or perhaps you just enjoy bringing misery and locking up people who don't need to be there..."

I was never a judge and never imposed a sentence.

"...(as reflected in your outrageous and shameful comments in the comments regarding Lynne Stewart)."

Sorry, I'm not big on helping terrorists. But let a thousand flowers bloom, ya know.

"Professor Berman has the patience of Job not to bar you from commenting."

Ah, finally. The pro-druggie crowd shows its true colors: The answer to views with which you disagree is to ban them.

Well that's so far out, Alan. Hey, look, maybe you could burn some books, too. You might have missed that by 75 years or so, but you can always start it up again. Hope does spring eternal in the only-one-opinion-allowed breast.

You have a nice one, Alan.

Posted by: Bill Otis | Aug 7, 2013 7:06:17 PM

albeed --

"I thought we were a constitutional republic so that majority rule (mob rule) has less meaning and power (ideally)."

Are you sure you want so blithely to equate majority rule with mob rule?

"I know that this administration breaks the law frequently!"

You're making good progress.

"Bill, go prosecute!"

Not for this bunch. I really wouldn't, for example, fit in too well with the racism and trial-by-press-release this DOJ is showing by loudly investigating George Zimmerman when they already know they have no case. I know they feel like they want to pander to Al Sharpton and his group, but using the powers of prosecution to inflame racial antagonism is not my style.

I would, however, consider a request to catch on with the team that's prosecuting Dzokhar Tsarneav. First, I would love to take on Judy Clarke, and second, I want the cute little Dzokhar to get the death penalty.

How 'bout you?

Posted by: Bill Otis | Aug 7, 2013 7:20:01 PM

I think Bill Otis is a dinosaur.

Posted by: Liz McD | Aug 7, 2013 10:27:13 PM

Liz McD --

I think your analysis needs to be a little more precise there in Step 2.

Posted by: Bill Otis | Aug 7, 2013 10:42:46 PM

Sentencing Reform isn't just a "liberal" issue anymore. As Doc Berman has reported here, ALEC and Right on Crime (with such anti-"liberal" stalwarts as Grover Norquist, Bill Bennett, Edwin Meese, and Tony Perkins) are also squarely behind sentencing reform.

Why? Because this nation has sequestered itself into fiscal desperation, even as we're spending more cash on imprisonment than we're spending on the public services (schools and health care, like drug treatment) that are proven to reduce the need for imprisonment.

This is not a "liberal" issue. This is an economic issue, about fiscal responsibility in the face of diminishing returns. Even accepting arguendo that some increase of imprisonment contributed to reduced crime rates (and not everyone accepts this as fact), we reach a point where we're imprisoning without making us any safer for it. Why spend literally Billions of dollars every year on a program that doesn't make the public any safer?

Posted by: Jay Hurst | Aug 8, 2013 10:28:06 AM

Jay Hurst --

"...we're spending more cash on imprisonment than we're spending on the public services (schools and health care, like drug treatment) that are proven to reduce the need for imprisonment."

What will really reduce the need for imprisonment is not the next government social program. Spending on exactly the kind of programs you note exploded in the Sixties and Seventies, and crime exploded with it.

What will reduce the need for imprisonment is building a culture where people are expected and required to behave honestly and peacefully, and to accept the consequences if they don't.

The main arbiter of behavior by far is conscience, and the thing that keeps your conscience alive is not government spending.

Posted by: Bill Otis | Aug 8, 2013 12:46:32 PM

this is very very good bill!

"What will reduce the need for imprisonment is building a culture where people are expected and required to behave honestly and peacefully, and to accept the consequences if they don't."

But it is also the problem!

The american public has had 50-60 years of actions from our government that shows us that our so-called gov is out for itself and only itself. At least as far as the employees who make it up are concerned. This perception has moved all the way down to the local lvl including the police.

So now comes the american public who now figure what the hell. They are doing it. I'm going to get mine!

Posted by: rodsmith | Aug 8, 2013 1:44:16 PM

I'll believe it (criminal justice reform coming from the Obama administration) when I see it. The President and the AG having been talking the talk for almost 5 years, but have yet to walk the walk. Look at the federal prosecutions for marijuana in places where states have legalized it. One of the very first things the AG "created" in 2009 was a corrections/criminal justice workgroup across DOJ to review system-wide issues - it went NOWHERE. The AG could have, by fiat, amended/changed charging and sentencing policies, but has failed to do so. The much ballyhooed crack reductions resulted in the now current 18:1 ratio, as opposed to a 1:1 ratio. And pardons/commutations, as have been pointed out ad nauseum on this site, have gone nowhere. As one who worked in DOJ as a career employee for more than 2 decades, and is generally supportive of the Obama administration, I have found there to be a HUGE distinction between the words and actions of Eric Holder's DOJ. Again, I'll believe it when I see it and I sure as hell ain't holding my breath.

Posted by: anon | Aug 8, 2013 5:09:55 PM


Referring to Vietnam era spending, a forty-year-old example that used understandings of medical science even older than that, is a red herring in a 2013 conversation where an anti-liberal stronghold like Texas is proving that limited incarceration, used in conjunction with modern drug treatment and the threat of incarceration, really is driving offense and imprisonment rates down.

Another thing that will drive incarceration rates down is not having thousands of criminal laws on the books -- as folks like James Sensenbrenner (one architect of our modern prison culture) are now publicly supporting.

We don't live in a nation where conscience is rewarded. That issue, which you rightly discuss, is far larger than obeying laws that Government itself is too frequently shown to violate (one great example is the broad range of unpunished prosecutorial misconduct nationwide). When corporations will gut workers for an extra penny or two, and government happily titters about it because corporations donate more to war chests than underpaid workers, we aren't living in a culture that supports and favors "community responsibility" or a "conscience."

Your complaint here is with the current state of U.S. culture, but it is not a reason to just keep chucking more persons in prison than China or Russia. I really don't believe we're a more evil people than those in China or Russia.

Said Anthony Kennedy, to the Senate Judiciary Committee in 2007: "Our sentences are too long, our sentences are too severe, our sentences are too harsh. . . there’s no compassion in the system. There’s no mercy in the system."

Posted by: Jay Hurst | Aug 9, 2013 9:45:48 AM

Jay --

-- I will take the crime statistics from all the states over 20 years as being more revealing and reliable that those from one or a handful of states over two or three years.

-- I agree that we should eliminate non-mens rea, regulatory crimes. The traditional understanding (that to be a criminal, you have to have bad intent) should be maintained. The regulatory state, if we must have one, can find other means of enforcement.

-- "We don't live in a nation where conscience is rewarded."

That is not entirely true. Honest people who work hard still, by-and-large, come out better than people who're trying to get by on the cheap, and with dishonesty. But I agree that conscience doesn't work as well as it should.

One way to help this situation is to build up, not undermine, that idea that the individual is responsible for his own life and his own choices. That is the opposite of what goes on on this blog day after day, to wit, standard-issue criticism of the Big Bad System for having too many inmates.

What this overlooks is that people become inmates for a reason, and the reason has to do with THEIR behavior and THEIR values. Always blaming the system is simply a means to divert attention from (1) where it actually belongs, and (2) from the only truly effective (not to mention cost-free) solution we are ever going to find to incarceration.

That solution is for people who are contemplating committing crime to start thinking about what's wrong INSIDE of them, instead of letting themselves off the hook by ignoring that and pretending It's Everybody Else's Fault.

No, it is not. A person doesn't have to know beans about Russia, China or Anthony Kennedy to ask himself, "Is it really such a good idea to knock over the 7-11? Is that the way I should be living? The people inside that 7-11 have rights and feelings, too. Maybe those things are what I should be thinking about."

It is that thought, not Eric Holder's speeches, that's the real answer to "over incarceration."

Posted by: Bill Otis | Aug 9, 2013 11:06:48 AM

The world we live in is so sad. These sentencing guidelines need to be changed yesterday! It's a way to keep men down and for what? Hardened criminals get less time than drug transactions. Obviously the system is broken and needs to be fixed. Yes, if you commit a crime you should be punished, but the punishment should fit the crime. Currently it does not. I have a close family member facing 3 years for a minimal charge and first time offender. Anyone that can point me in the right direction for help now, please contact me.

Posted by: Wanda | Aug 26, 2013 11:56:48 AM

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