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Holder’s New Sentencing Policy Means Congress Must Act

Holder is adopting a “smart on crime” approach to punishment. But unless Congress implements legislation consistent with these policy shifts, they could end the moment he leaves his office.

  • Jessica Eaglin
Published: August 15, 2013

Crossposted on The Hill

U.S. Attorney General Eric Holder’s Monday announcement that the Justice Department will change its approach to punishing federal drug offenders is a pivotal step in criminal justice reform. But unless Congress implements legislation consistent with these policy shifts, they could end the moment he leaves his office for the last time. Holder’s new policy is only discretionary, and could be reversed by a new administration.

Holder called for three major changes affecting federal sentencing law. He mandated that prosecutors not seek mandatory minimum sentences for low-level, nonviolent, non-gang related drug offenders. Created in the 1980s as part of the War on Drugs, mandatory minimums require judges to impose longer sentences for certain drug offenses depending on the weight and type of drug. Holder’s new policy orders prosecutors to charge low-level drug offenders without specifying the drug weight, thus providing judges with the ability to circumvent harsh legally required mandatory sentences. Almost half of the federal prison population consists of those convicted for drug-related crimes. Last year, federal prosecutors sought mandatory minimum sentences in about sixty percent of all drug-related cases, even though only six percent of those offenders played a serious role in the crime.

In addition, Holder directed that each district’s U.S. Attorney develop guidelines for determining which offenders should face federal charges, and which should be handled by state and local prosecutors, in the hopes of decreasing the number of federal prosecutions. He also endorsed the use of sentencing alternatives – such as drug treatment and community service – to divert low-level offenders from long prison terms.

Most important, Holder’s reforms represent a philosophical condemnation of “draconian mandatory minimum” sentencing laws – and mass incarceration more generally: “It is clear . . . that too many Americans go to too many prisons for too long, and for no truly good law enforcement reason.”  

Holder is using his discretion to adopt a “smart on crime” approach to punishment. These policies allow federal prosecutors to choose not to pursue low-level offenders and or charge them in such a way as to avoid harsh mandatory minimums. But these instructions do not have the force of law. If a particular U.S. Attorney still wishes to aggressively prosecute non-violent offenders, or the next Attorney General decides to reverse course, the nation’s system of mass incarceration will remain intact. Holder did much to expose the problem of mass incarceration, but there’s only so much he can do alone.

To put the force of law behind Holder’s words, Congress must act. Only Congress can permanently change today’s overly harsh, costly and counterproductive sentencing regime and replace it with more proportional penalties. Several pieces of bipartisan legislation have already been introduced toward this end. In particular, the Smarter Sentencing Act, sponsored by Senators Dick Durbin (D.-Ill.) and Mike Lee (R.-Utah), would reduce the mandatory minimum penalties associated with drug sentences. It also orders the U.S. Sentencing Commission to recalibrate the federal guidelines for all drug offenses.

In his American Bar Association speech, Holder staked much of his legacy on a sensible approach to incarceration. It is rare for the executive branch to put action behind its words when it comes to criminal justice reform. Laudable as they are, Holder’s prescriptions may be only a momentary respite from a system of punishment that has long since lost any reasonable connection to the severity of the underlying offense or the enhancement of public safety. It is time for Congress to adopt similar measures.