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WASHINGTON — In a major shift in criminal justice policy, the Obama administration will move on Monday to ease overcrowding in federal prisons by ordering prosecutors to omit listing quantities of illegal substances in indictments for low-level drug cases, sidestepping federal laws that impose strict mandatory minimum sentences for drug-related offenses.

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.

In recent weeks, he has also tightened rules on obtaining reporters’ data in leak cases and started an effort to strengthen protections for minority voters after the Supreme Court struck down part of the Voting Rights Act of 1965. The move continued an assertive approach to voting rights and other civil rights enforcement throughout his tenure.

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.

Amid a rise in crime rates a generation ago, state and federal lawmakers began passing a series of “tough on crime” laws, including mandatory minimum sentences for drug possession. But as crime rates have plummeted to 40-year lows and reduced the political potency of the fear of crime, fiscal pressures from the exploding cost of building and maintaining prisons have prompted states to find alternatives to incarceration.

Driven in part by a need to save money, several conservative-leaning states like Texas and Arkansas have experimented with finding ways to incarcerate fewer low-level drug offenders. The answers have included reducing prison terms for them or diverting them into treatment programs, releasing elderly or well-behaved inmates early, and expanding job training and re-entry programs.

The policy is seen as successful across the ideological divide. For example, in Texas, which was an early innovator, taxpayers have saved hundreds of millions of dollars on what had been projected as a need to build prison space. With crime rates remaining at generational lows, the space is no longer necessary.

Several years ago, a group called Right on Crime formed to push what it calls the “conservative case for reform.” Its Republican affiliates include Jeb Bush, a former Florida governor; Edwin R. Meese III, an attorney general during the Reagan administration; and Newt Gingrich, a former House speaker.

“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.”

Still, in states that have undertaken prison and parole overhauls, the changes were approved by state lawmakers. Mr. Holder’s reform is different: instead of going through Congress for legislation to modify mandatory minimum sentencing laws, he is invoking his power of prosecutorial discretion to sidestep them.

Earlier in Mr. Obama’s presidency, the administration went through Congress to achieve policy goals like reducing the sentencing disparity between crack and powder forms of cocaine. But it has increasingly pursued a strategy of invoking unilateral executive powers without Congress, which the White House sees as bogged down by Republican obstructionism.

Previous examples, like Mr. Obama’s decision last year to issue an executive order allowing immigrants who came to the United States illegally as children to remain without fear of deportation and to work, have drawn fire from Republicans as “power grabs” that usurp the role of Congress.

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.

Justice Dept. Seeks to Curtail Stiff Drug Sentences,
NYT,
12.8.2013,
https://www.nytimes.com/2013/08/12/
us/justice-dept-seeks-to-curtail-stiff-drug-sentences.html

Editorial

The Next Attorney General

December 3, 2008

The New York Times

If he is confirmed by the Senate as attorney general, Eric Holder, President-elect Barack Obama’s choice for the job, will inherit a Justice Department that has been mired in scandal and that has seriously lost its way in critical areas. Under President Bush, the department has been used to defend the indefensible, like indefinite detention and torture of prisoners, and to undermine rather than protect Americans’ cherished rights. Mr. Holder could be an exemplary choice to face this daunting agenda, but he must answer serious questions before the Senate votes on his confirmation.

Mr. Holder, who would be the first African-American attorney general, has a particularly good record of public service for this job. He has been a United States attorney for the District of Columbia, a prosecutor in the Justice Department’s public integrity section and a deputy attorney general under President Bill Clinton.

He has been outspoken on the most critical issue facing the department: restoring the rule of law. In a speech in June, he described the Bush administration’s anti-terrorism policies as “excessive and unlawful.” And he has called for closing the prison in Guantánamo Bay, Cuba.

But senators should ask Mr. Holder to square those views with comments he made after the Sept. 11 attacks when he defended the Bush administration’s prisoner policies by declaring that “you can think of these people as combatants and we are in the middle of a war.”

Americans need to know that Mr. Holder does not believe that detainees can be held indefinitely without being brought before a judge — and that he would stand up for the Constitution when times are tough.

There are other aspects of Mr. Holder’s record that are of concern, starting with his role in Mr. Clinton’s pardon of Marc Rich, a billionaire financier who had fled the country rather than face federal tax-evasion charges whose ex-wife, Denise Rich, had contributed heavily to the Clinton presidential library and the Democratic Party.

The Senate needs to probe that serious lapse in judgment closely to seek assurances that Mr. Holder will be unyielding about keeping political influence out of the Justice Department, which was shamefully politicized under Alberto Gonzales.

In addition to signing off on torture memos and depriving detainees of basic rights, the Bush Justice Department adopted legal positions that greatly expanded executive power. These policies must be quickly undone. The next attorney general also will have to get to the bottom of the department’s disgraceful record of politicized hiring and firing. The attorney general will need to ensure that the investigation of the firings of United States attorneys for what appear to be partisan reasons is thorough and credible, and that witnesses who have been defying subpoenas, including Karl Rove and Harriet Miers, the former White House counsel, testify under oath.

There already are people — mainly Republicans — who say investigating these matters would be divisive. But the department’s integrity cannot be restored until the truth comes out and any wrongdoers are punished.

Many parts of the Justice Department must be pointed in a new direction. In the Bush years, the voting rights section worked against voting rights. The civil rights division too often sat idly by, or supported the wrong side, when rights were infringed. The antitrust division all but abandoned its responsibility to protect the public from the harm of monopoly power.

The attorney general is the nation’s top law enforcement official. The Senate must make sure that Mr. Holder is committed to the right kind of change in that job.