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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

In Area Packed With Prisons,

a Split on Adding Jihadists

May 23, 2009

The New York Times

By KIRK JOHNSON

CAÑON CITY, Colo. — Prison is a way of life here, and always has been. The old territorial prison started it all in 1868 at the end of Main Street, anchoring a community and an economy with its massive tan stone walls and turrets. Generations later, more than 5,000 inmates in state and federal lockups, from minimum security to the so-called supermax, ring the town like a bracelet.

But when it comes to the idea of transferring those suspected or convicted of terrorism from the prison at Guantánamo Bay in Cuba to federal high-security prisons like the one just down the road in Florence, as the Obama administration has proposed, Lyle Jacobson draws the line.

“It would make us a target,” said Mr. Jacobson, an 84-year-old retired accountant. “I think it’s very dangerous.”

Mr. Jacobson, who said he was a prisoner of war in Germany for nine months near the end of World War II, said he was not so worried about escapes. The prisons are secure enough, he said, and in fact there have been no escapes from the Administrative Maximum prison in Florence, the only one in the federal system. Rather, it is the international attention — a bull’s-eye for terrorists and their allies — that he fears could be drawn around this part of southeast Colorado.

Al Ballard is just as vocal and opinionated the other way.

“Bring them on,” said Mr. Ballard, who owns a tea house in town with his wife, Linda. “I don’t worry a lick.”

Mr. Ballard said the prison in Florence was so well run and secure and isolated that people here would not notice a thing. “We do need more guards though,” he added.

In a speech on Thursday, President Obama said it would be safe to transfer many Guantánamo inmates to high-security prisons in the United States, noting that the corrections system already holds hundreds of convicted terrorists. A Justice Department spokesman, Matt Miller, said 216 international terrorists were in federal prisons, as well as 139 domestic terrorists. All have been convicted and are in the custody of the Bureau of Prisons.

That kind of transfer is not a blasé topic here. Opinions are instant and strong. And there is a base of experience. Many of the terrorists the president cited already reside in Florence, including Sheikh Omar Abdel-Rahman and Ramzi Yousef, convicted in the 1993 World Trade Center bombing; Ahmed Ressam, the “millennium bomber”; Wadih El-Hage, a member of Al Qaeda convicted of the 1998 embassy bombings in Kenya and Tanzania, and the Unabomber, Ted Kaczynski.

Nonetheless, when the word Guantánamo comes up, so do questions of politics and safety, and for some, religion and culture — taut and intertwined and loaded with emotion.

“People here are good Christian conservatives,” said Tom Baron, who described himself as a struggling small-business man, co-owner with his wife, Marie, of Donuts and Dogs, a coffee shop. Mr. Baron said he thought that large numbers of Muslims — the family members and friends of inmates — would move into town if the transfer occurred. Property values would fall, he said, and some family members of terrorists might be terrorists, too.

“That would destroy this community,” Mr. Baron said.

Fine-print legal definitions of who exactly can be labeled a terrorist under federal law have also become bound up in the debate about transfers. Not all of those mentioned by the president were actually convicted of terrorism. The Bureau of Prisons classifies inmates it holds — some of whom might have been convicted of, say, multiple murder counts — as terrorists if their crimes were intended to intimidate or coerce a civilian population or a government by mass destruction, assassination or kidnapping.

Politics quickly finds a way into the discussion after that. Mr. Obama, though he carried Colorado as a whole last November, fared badly here in Fremont County, winning only about a third of the vote.

“I wouldn’t expect people in Fremont County to favor the president’s positions,” said State Representative Liane McFadyen, a Democrat whose district in Fremont County includes 12 prisons — eight run by the state and four by the federal bureau. Ms. McFadyen said she had mostly heard opposition from constituents.

And where politics and local concerns about safety collide, the mix is volatile.

“These people hate America; they truly hate America,” said Glen Morlan, a disabled welder. “Why would you want to bring them here?”

Mr. Morlan said that he had not voted for Mr. Obama and that he thought the idea of closing Guantánamo was bad for national security — and the community. And that makes him dislike Mr. Obama all the more.

Some people do in fact shrug their shoulders about the question of detainee transfers.

Sherry Meins, a school aide at Garden Park High School, was enjoying the last day of school on Friday, sitting outside in the sun on a bench on Main Street. Ms. Meins said the system of security alerts in town was so elaborate and well honed as to be almost second nature, so much that she did not think Guantánamo detainees would change anything.

The schools, she said, regularly practice “lockdowns” that would take place in the event of an inmate escape. And even if a prisoner did get out, she said, he probably wanted to get out of town as fast as possible, not hang around Cañon City.

“Our children our safe,” Ms. Meins said.

Ms. McFadyen, the state representative for the area, said transfers might be moot anyway unless prisoners already in Florence were moved elsewhere.

“On top of everything else, there’s no room at the supermax,” she said. “It’s full.”

Dan Frosch contributed reporting from Denver.

In Area Packed With Prisons, a Split on Adding Jihadists,
NYT, 23.5.2009,
http://www.nytimes.com/2009/05/23/us/23supermax.html

American Exception

Inmate Count in U.S.

Dwarfs Other Nations’

April 23, 2008
The New York Times
By ADAM LIPTAK

The United States has less than 5 percent of the world’s population. But it has almost a quarter of the world’s prisoners.

Indeed, the United States leads the world in producing prisoners, a reflection of a relatively recent and now entirely distinctive American approach to crime and punishment. Americans are locked up for crimes — from writing bad checks to using drugs — that would rarely produce prison sentences in other countries. And in particular they are kept incarcerated far longer than prisoners in other nations.

Criminologists and legal scholars in other industrialized nations say they are mystified and appalled by the number and length of American prison sentences.

The United States has, for instance, 2.3 million criminals behind bars, more than any other nation, according to data maintained by the International Center for Prison Studies at King’s College London.

China, which is four times more populous than the United States, is a distant second, with 1.6 million people in prison. (That number excludes hundreds of thousands of people held in administrative detention, most of them in China’s extrajudicial system of re-education through labor, which often singles out political activists who have not committed crimes.)

San Marino, with a population of about 30,000, is at the end of the long list of 218 countries compiled by the center. It has a single prisoner.

The United States comes in first, too, on a more meaningful list from the prison studies center, the one ranked in order of the incarceration rates. It has 751 people in prison or jail for every 100,000 in population. (If you count only adults, one in 100 Americans is locked up.)

The only other major industrialized nation that even comes close is Russia, with 627 prisoners for every 100,000 people. The others have much lower rates. England’s rate is 151; Germany’s is 88; and Japan’s is 63.

The median among all nations is about 125, roughly a sixth of the American rate.

There is little question that the high incarceration rate here has helped drive down crime, though there is debate about how much.

Criminologists and legal experts here and abroad point to a tangle of factors to explain America’s extraordinary incarceration rate: higher levels of violent crime, harsher sentencing laws, a legacy of racial turmoil, a special fervor in combating illegal drugs, the American temperament, and the lack of a social safety net. Even democracy plays a role, as judges — many of whom are elected, another American anomaly — yield to populist demands for tough justice.

Whatever the reason, the gap between American justice and that of the rest of the world is enormous and growing.

It used to be that Europeans came to the United States to study its prison systems. They came away impressed.

“In no country is criminal justice administered with more mildness than in the United States,” Alexis de Tocqueville, who toured American penitentiaries in 1831, wrote in “Democracy in America.”

No more.

“Far from serving as a model for the world, contemporary America is viewed with horror,” James Q. Whitman, a specialist in comparative law at Yale, wrote last year in Social Research. “Certainly there are no European governments sending delegations to learn from us about how to manage prisons.”

Prison sentences here have become “vastly harsher than in any other country to which the United States would ordinarily be compared,” Michael H. Tonry, a leading authority on crime policy, wrote in “The Handbook of Crime and Punishment.”

Indeed, said Vivien Stern, a research fellow at the prison studies center in London, the American incarceration rate has made the United States “a rogue state, a country that has made a decision not to follow what is a normal Western approach.”

The spike in American incarceration rates is quite recent. From 1925 to 1975, the rate remained stable, around 110 people in prison per 100,000 people. It shot up with the movement to get tough on crime in the late 1970s. (These numbers exclude people held in jails, as comprehensive information on prisoners held in state and local jails was not collected until relatively recently.)

The nation’s relatively high violent crime rate, partly driven by the much easier availability of guns here, helps explain the number of people in American prisons.

“The assault rate in New York and London is not that much different,” said Marc Mauer, the executive director of the Sentencing Project, a research and advocacy group. “But if you look at the murder rate, particularly with firearms, it’s much higher.”

Despite the recent decline in the murder rate in the United States, it is still about four times that of many nations in Western Europe.

But that is only a partial explanation. The United States, in fact, has relatively low rates of nonviolent crime. It has lower burglary and robbery rates than Australia, Canada and England.

People who commit nonviolent crimes in the rest of the world are less likely to receive prison time and certainly less likely to receive long sentences. The United States is, for instance, the only advanced country that incarcerates people for minor property crimes like passing bad checks, Mr. Whitman wrote.

Efforts to combat illegal drugs play a major role in explaining long prison sentences in the United States as well. In 1980, there were about 40,000 people in American jails and prisons for drug crimes. These days, there are almost 500,000.

Those figures have drawn contempt from European critics. “The U.S. pursues the war on drugs with an ignorant fanaticism,” said Ms. Stern of King’s College.

Many American prosecutors, on the other hand, say that locking up people involved in the drug trade is imperative, as it helps thwart demand for illegal drugs and drives down other kinds of crime. Attorney General Michael B. Mukasey, for instance, has fought hard to prevent the early release of people in federal prison on crack cocaine offenses, saying that many of them “are among the most serious and violent offenders.”

Still, it is the length of sentences that truly distinguishes American prison policy. Indeed, the mere number of sentences imposed here would not place the United States at the top of the incarceration lists. If lists were compiled based on annual admissions to prison per capita, several European countries would outpace the United States. But American prison stays are much longer, so the total incarceration rate is higher.

Burglars in the United States serve an average of 16 months in prison, according to Mr. Mauer, compared with 5 months in Canada and 7 months in England.

Many specialists dismissed race as an important distinguishing factor in the American prison rate. It is true that blacks are much more likely to be imprisoned than other groups in the United States, but that is not a particularly distinctive phenomenon. Minorities in Canada, Britain and Australia are also disproportionately represented in those nation’s prisons, and the ratios are similar to or larger than those in the United States.

Some scholars have found that English-speaking nations have higher prison rates.

“Although it is not at all clear what it is about Anglo-Saxon culture that makes predominantly English-speaking countries especially punitive, they are,” Mr. Tonry wrote last year in “Crime, Punishment and Politics in Comparative Perspective.”

“It could be related to economies that are more capitalistic and political cultures that are less social democratic than those of most European countries,” Mr. Tonry wrote. “Or it could have something to do with the Protestant religions with strong Calvinist overtones that were long influential.”

The American character — self-reliant, independent, judgmental — also plays a role.

“America is a comparatively tough place, which puts a strong emphasis on individual responsibility,” Mr. Whitman of Yale wrote. “That attitude has shown up in the American criminal justice of the last 30 years.”

French-speaking countries, by contrast, have “comparatively mild penal policies,” Mr. Tonry wrote.

Of course, sentencing policies within the United States are not monolithic, and national comparisons can be misleading.

“Minnesota looks more like Sweden than like Texas,” said Mr. Mauer of the Sentencing Project. (Sweden imprisons about 80 people per 100,000 of population; Minnesota, about 300; and Texas, almost 1,000. Maine has the lowest incarceration rate in the United States, at 273; and Louisiana the highest, at 1,138.)

Whatever the reasons, there is little dispute that America’s exceptional incarceration rate has had an impact on crime.

“As one might expect, a good case can be made that fewer Americans are now being victimized” thanks to the tougher crime policies, Paul G. Cassell, an authority on sentencing and a former federal judge, wrote in The Stanford Law Review.

From 1981 to 1996, according to Justice Department statistics, the risk of punishment rose in the United States and fell in England. The crime rates predictably moved in the opposite directions, falling in the United States and rising in England.

“These figures,” Mr. Cassell wrote, “should give one pause before too quickly concluding that European sentences are appropriate.”

Other commentators were more definitive. “The simple truth is that imprisonment works,” wrote Kent Scheidegger and Michael Rushford of the Criminal Justice Legal Foundation in The Stanford Law and Policy Review. “Locking up criminals for longer periods reduces the level of crime. The benefits of doing so far offset the costs.”

There is a counterexample, however, to the north. “Rises and falls in Canada’s crime rate have closely paralleled America’s for 40 years,” Mr. Tonry wrote last year. “But its imprisonment rate has remained stable.”

Several specialists here and abroad pointed to a surprising explanation for the high incarceration rate in the United States: democracy.

Most state court judges and prosecutors in the United States are elected and are therefore sensitive to a public that is, according to opinion polls, generally in favor of tough crime policies. In the rest of the world, criminal justice professionals tend to be civil servants who are insulated from popular demands for tough sentencing.

Mr. Whitman, who has studied Tocqueville’s work on American penitentiaries, was asked what accounted for America’s booming prison population.

“Unfortunately, a lot of the answer is democracy — just what Tocqueville was talking about,” he said. “We have a highly politicized criminal justice system.”

Inmate Count in U.S. Dwarfs Other Nations’, NYT, 23.4.2008,
http://www.nytimes.com/2008/04/23/us/23prison.html

Record - High Ratio

of Americans in Prison

February 28, 2008
Filed at 11:12 a.m. ET
By THE ASSOCIATED PRESS
The New York Times

NEW YORK (AP) -- For the first time in history, more than one in every 100 American adults is in jail or prison, according to a new report tracking the surge in inmate population and urging states to rein in corrections costs with alternative sentencing programs.

The report, released Thursday by the Pew Center on the States, said the 50 states spent more than $49 billion on corrections last year, up from less than $11 billion 20 years earlier. The rate of increase for prison costs was six times greater than for higher education spending, the report said.

Using updated state-by-state data, the report said 2,319,258 adults were held in U.S. prisons or jails at the start of 2008 -- one out of every 99.1 adults, and more than any other country in the world.

The steadily growing inmate population ''is saddling cash-strapped states with soaring costs they can ill afford and failing to have a clear impact either on recidivism or overall crime,'' said the report.

Susan Urahn, managing director of the Pew Center on the States, said budget woes are prompting officials in many states to consider new, cost-saving corrections policies that might have been shunned in the recent past for fear of appearing soft in crime.

''We're seeing more and more states being creative because of tight budgets,'' she said in an interview. ''They want to be tough on crime, they want to be a law-and-order state -- but they also want to save money, and they want to be effective.''

The report cited Kansas and Texas as states which have acted decisively to slow the growth of their inmate population. Their actions include greater use of community supervision for low-risk offenders and employing sanctions other than reimprisonment for ex-offenders who commit technical violations of parole and probation rules.

''The new approach, born of bipartisan leadership, is allowing the two states to ensure they have enough prison beds for violent offenders while helping less dangerous lawbreakers become productive, taxpaying citizens,'' the report said.

According to the report, the inmate population increased last year in 36 states and the federal prison system.

The largest percentage increase -- 12 percent -- was in Kentucky, where Gov. Steve Beshear highlighted the cost of corrections in his budget speech last month. He noted that the state's crime rate had increased only about 3 percent in the past 30 years, while the state's inmate population has increased by 600 percent.

The Pew report was compiled by the Center on the State's Public Safety Performance Project, which is working directly with 13 states on developing programs to divert offenders from prison without jeopardizing public safety.

''For all the money spent on corrections today, there hasn't been a clear and convincing return for public safety,'' said the project's director, Adam Gelb. ''More and more states are beginning to rethink their reliance on prisons for lower-level offenders and finding strategies that are tough on crime without being so tough on taxpayers.''

The report said prison growth and higher incarceration rates do not reflect a parallel increase in crime or in the nation's overall population. Instead, it said, more people are behind bars mainly because of tough sentencing measures, such as ''three-strikes'' laws, that result in longer prison stays.

''For some groups, the incarceration numbers are especially startling,'' the report said. ''While one in 30 men between the ages of 20 and 34 is behind bars, for black males in that age group the figure is one in nine.''

The nationwide figures, as of Jan. 1, include 1,596,127 people in state and federal prisons and 723,131 in local jails -- a total 2,319,258 out of almost 230 million American adults.

The report said the United States is the world's incarceration leader, far ahead of more populous China with 1.5 million people behind bars. It said the U.S. also is the leader in inmates per capita (750 per 100,000 people), ahead of Russia (628 per 100,000) and other former Soviet bloc nations which make up the rest of the Top 10.

------

On the Net:

www.pewcenteronthestates.org .

Record - High Ratio of Americans in Prison, NYT, 28.2.2008,
http://www.nytimes.com/aponline/us/AP-Prison-Population.html

Justice Dept. Numbers

Show Prison Trends

December 6, 2007

The New York Times

By SOLOMON MOORE

About one in every 31 adults in the United States was in prison, in jail or on supervised release at the end of last year, the Department of Justice reported yesterday.

An estimated 2.38 million people were incarcerated in state and federal facilities, an increase of 2.8 percent over 2005, while a record 5 million people were on parole or probation, an increase of 1.8 percent. Immigration detention facilities had the greatest growth rate last year. The number of people held in Immigration and Customs Enforcement detention facilities grew 43 percent, to 14,482 from 10,104.

The data reflect deep racial disparities in the nation’s correctional institutions, with a record 905,600 African-American inmates in prisons and state and local jails. In several states, incarceration rates for blacks were more than 10 times the rate of whites. In Iowa, for example, blacks were imprisoned at 13.6 times the rate of whites, according to an analysis of the data by the Sentencing Project, a research and advocacy group.

But the report concludes that nationally the percentage of black men in state and federal prison populations in 2006 fell to 38 percent, from 43 percent in 2000. The rates also declined for black women, while rates for white women increased.

Over all, the number of women in state and federal prisons, 112,498, was at a record high. The female jail and prison population has grown at double the rate for men since 1980; in 2006 it increased 4.5 percent, its fastest clip in five years.

The report suggests that state prison capacity has expanded at roughly the same rate as the prison population, with prisons operating at 98 percent to 114 percent of capacity, a slight improvement over 2005.

Still, many prison systems are accommodating record numbers of inmates by using facilities that were never meant to provide bed space. Arizona has for years held inmates in tent encampments on prison grounds. Hundreds of California prisoners sleep in three-tier bunk beds in gymnasiums or day rooms. Prisons throughout the nation have made meeting rooms for educational and treatment programs into cell space.

Private prisons have also been a growing option for crowded corrections departments. And local jails contracted with various government agencies to hold 77,987 more state and federal inmates last year.

Justice Dept. Numbers Show Prison Trends,
NYT,
6.12.2007,
https://www.nytimes.com/2007/12/06/
us/06prison.html

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