Attorney General Eric Holder announced a smart policy change — and kicked off a worthwhile debate — with his speech on Monday to the American Bar Association. Holder said that going forward, the US government will charge certain nonviolent drug offenders in a way that will avoid long mandatory sentences. That would leave the judge with more discretion to impose a sentence tailored to the individual.
In practice, Holder’s new policy will be effectuated by not charging certain defendants with the quantity of a drug that would trigger a mandatory minimum sentence. It will apply to nonviolent drug offenders who don’t use a weapon or the threat of violence in the commission of the crime, who aren’t charged with trafficking drugs to minors, and who don’t have ties to large-scale drug organizations, gangs, or cartels.
It’s not a policy that would apply to career criminals, even if they otherwise meet those criteria. To be eligible for the more flexible treatment, the defendant could have no more than two previous convictions, and even then, if one of those was a violent felony, he or she might well be ineligible. Further, if new information was developed at trial, prosecutors would still be free to recommend longer sentences.
Mandatory minimums were enacted in the mid- and late 1980s, and, largely as a result, federal prisons are now jammed with inmates serving long terms for drug offenses. As Holder noted in his speech, during a time when the US population increased by about a third, the federal prison population jumped by almost 800 percent. The federal government now holds more than 219,000 people behind bars, nearly half because of drug crimes.
With federal prisons some 40 percent over capacity, it’s time to look again at the war on drugs. That hardly means that every drug offender should be treated leniently. But the anti-drug effort should focus on the big players and violent criminals. Nonviolent, run-of-the-mill, drug crimes shouldn’t automatically trigger long sentences.
In making the policy change, Holder also hopes to jump-start congressional efforts to rethink mandatory minimums. There, he’ll find a sympathetic ear not just among liberals but also among libertarians, who don’t believe that nonviolent drug offenses are best dealt with through long stays in prison. Some very conservative states have taken the lead in pioneering alternative sentences for nonviolent offenders.
So far, Holder’s move hasn’t triggered what once would have been a (nearly) mandatory political battle. Instead, he’s gotten a respectful hearing. That in and of itself is an encouraging sign. It’s past time to rethink drug-sentencing laws and policies that have choked our prisons, but failed to solve the nation’s drug problems.