Drug-war critics cheer Holder's plan to dodge sentencing laws

Attorney General says the government imprisons too many people for too long, and without sufficient reason

U.S. Attorney General Eric Holder speaks during the 2013 America Bar Association (ABA) annual meeting on August 12, 2013 in San Francisco, California
Justin Sullivan/Getty Images

Those who believe the "war on drugs" has unfairly targeted young African-Americans and Hispanics and has needlessly swelled the U.S. prison population scored two significant victories on Monday: Attorney General Eric Holder announced that the Justice Department would begin circumventing the harsh mandatory-minimum sentences on non-violent drug offenders mandated by Congress 26 years ago; and a federal judge declared the New York Police Department's "stop-and-frisk" policy unconstitutional.

Addressing the American Bar Association in San Francisco, Holder -- the country's first black attorney general -- offered a scathing assessment of the disproportionate impact of current sentencing protocols on African-Americans and Latinos, indicating his department planned to make an end run around the mandatory sentences by ensuring that the charges against non-violent drug offenders with no ties to organized crime are framed in terms that don't trigger those minimums.

In a speech hailed as a "breakthrough" by some drug-reform advocates despite their skepticism, Holder argued that the government imprisons too many people for too long, and without sufficient reason. The attorney general noted that while the United States represents 5 percent of the world's total population, it incarcerates nearly 25 percent of the world's prison population -- at a cost of $80 billion per year in 2010.

The Federal Bureau of Prisons reports that 47 percent of inmates in U.S. prisons were convicted of drug offenses, and that African-Americans comprise 37 percent of the prison population, while Hispanics make up 35 percent.

Holder cited the "shameful" finding in one recent study that black men received sentences nearly 20 percent longer than those given to white men convicted of similar crimes. And he seemed to acknowledge the failure of what he termed the "so-called 'war on drugs,'" and warned that "we cannot simply prosecute or incarcerate our way to becoming a safer nation."

Holder plans to issue a new directive to federal prosecutors nationwide to begin charging "certain low-level, non-violent drug offenders" in a way that would effectively circumvent laws requiring mandatory minimum sentences tied to the amount of drugs involved in the case; for example, five years imprisonment, without parole, for a gram of LSD or 28 grams of crack cocaine. The New York Times reported that prosecutors would simply be ordered to avoid specifying a quantity of drugs in their indictments.

The number of drug indictments in the courts of New York City could fall should mayor Michael Bloomberg fail to overturn on appeal Monday's ruling by federal District Court Judge Shira Scheindlin that the NYPD's "stop-and-frisk" policy is unconstitutional. The decade-old policy has allowed police to randomly stop individuals, checking their criminal records and searching them for "contraband" -- drugs or weapons. Touted as a strategy to make troubled neighborhoods safer, the policy also disproportionately targeted young black and Latino men, causing outrage in their neighborhoods throughout the city.

Judge Scheindlin found that even when all other variables, such as amount of crime, were controlled in a given neighborhood, NYPD officers were still more likely to stop blacks and Hispancis than white people, more likely to use force, and less likely to have valid justification for doing so. She cited clandestinely recorded statements taken by police whistleblowers that featured superiors acknowledging that "stop and frisk" was aimed at targeting "male blacks 14 to 21." She also noted that only 6 percent of all stops resulted in an arrest, while only 1.5 percent uncovered a weapon, she said.

The judge ruled that "senior officials in the City and at the NYPD have been deliberately indifferent to the discriminatory application of stop and frisk," adding that they had adopted seemingly "willful blindness."

If the New York City stop-and-frisk finding was definitive, Holder's announcement was national in scale and could therefore potentially have a more wide-ranging impact. But despite the promise of Holder's remarks, advocates of reform remained skeptical that his plan would significantly change the situation. Crucially, the sentencing reform scheme would be limited to a highly tailored category of accused people: those who did not use violence or a weapon, or sell to minors; are not leaders of a criminal organization; have no significant ties to large-scale gangs or cartels; and have no significant criminal history. Prosecutors will likely have wide leeway to determine what constitutes "significant" criminal history or ties to gangs.

Holder also promised to expand the government's policy of "compassionate release," specifically for elderly people who had not committed violent offenses, but he did not say whether defendants who are facing drug charges or have been recently sentenced under mandatory minimums would benefit from the new guidelines.

"He did not say anything about clemencies or pardons, which means there's relatively little in the speech that will help those who are currently incarcerated for absurd lengths of time," said Ethan Nadelmann, executive director of the New York-based Drug Policy Alliance.

Despite such criticism, however, many longtime reform advocates were pleasantly surprised to hear the attorney general cite some of their most common critiques of the decades-old "war on drugs".

"It doesn't go far enough, it's too little, too late but nonetheless a very significant development," said Nadelmann. "This is the first time a U.S. attorney general has addressed the issue of over incarceration in such strong language, or with such specific and relatively bold proposals."

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