Atty. Gen. Holder plays catch-up on criminal justice

In his speech to the American Bar Assn. on Monday, Atty. Gen. Eric H. Holder Jr. sounded more like a fierce critic of the federal criminal justice system than its formal leader. He described some federal mandatory minimum prison terms as “excessive” and “draconian” and said “they oftentimes generate unfairly long sentences.” He asserted that “people of color often face harsher punishments than their peers,” and he more broadly lamented that “too many Americans go to too many prisons for far too long, and for no truly good law enforcement reason.”

But as startling, and welcome, as his statements were, the issues he raised weren’t new. Holder’s themes, and even his rhetoric, echo what many criminal justice advocates have been saying for years. Indeed, in a major policy speech in 2007, then-presidential candidate Barack Obama talked passionately about the need for federal sentencing reform to help usher in “a new dawn of justice.”

Yet, until now, aside from relatively tepid prodding of Congress to address extreme and disparate federal sentences on crack cocaine, the Obama administration’s criminal justice policies have largely followed the “get-tough” script that a generation of Democrats embraced hoping to thwart political attacks that they are “soft on crime.” On nearly every major criminal justice issue, including marijuana policy, federal prosecutorial powers, the war on drugs and the clemency process, the administration has shown little interest in seizing opportunities to pioneer long-needed reforms.

So why the apparent change in course now? In a way, the Obama administration is coming late to the party. President Obama’s traditional adversaries had already begun talking about the need for reform.

In recent years, with criminal justice expenditures accounting for an ever-larger portion of shrinking government budgets, Republican leaders at both the state and federal levels had begun championing reforms designed to reduce prison populations and their associated costs. A prominent new group, Right on Crime — which includes such GOP stalwarts as Jeb Bush, Newt Gingrich, Grover Norquist and Edwin Meese III — says in its statement of principles that a true conservative needs to be tough not only on crime but also on criminal justice spending. And the group stresses that over-reliance on incarceration is not a cost-effective approach to public safety.

Another prominent conservative, Sen. Rand Paul (R-Ky.), emerged this year as a prominent advocate for federal sentencing reform. Paul has sponsored legislation that would soften federal mandatory sentencing statutes, publicly complaining that “one-size-fits-all federal mandatory sentences … are heavy-handed and arbitrary” and “disproportionately affect those without the means to fight them.”

Holder’s bar association speech suggests the Obama administration senses that the time could be right for a bipartisan consensus in support of major federal sentencing reform. But his speech also hinted that the administration might be content with a gradual approach to achieving needed reforms.

The new charging policy that Holder unveiled — in which federal prosecutors won’t routinely include in indictments the amount of drugs seized, so as not to trigger mandatory minimum sentences in some cases — is not especially bold or sweeping. And other important reforms haven’t even been discussed.

If the administration is serious about reforming the system, it should immediately stop aggressively prosecuting medical marijuana providers that are in compliance with local laws. It should be proactively identifying and supporting clemency requests from federal inmates who received inappropriately lengthy sentences under mandatory guidelines.

Though Holder should be credited for giving attention to these issues in a forceful speech, he and the president need to recognize that a remarkable alignment of public-policy concerns and broader political realities make the next few months a critical period for achieving the “sweeping, systematic changes” that Holder correctly said are needed. The combination of relatively low crime rates, lean budgets, sequester cuts and overcrowded federal prisons presents a unique moment for the enactment of landmark criminal justice legislation, and the need for fundamental sentencing reform is one of the very few topics on which leading Democratic and Republican voices might be able to agree.

Rather than just calling for federal prosecutors to ease off on charges that could bring low-level drug offenders lengthy mandatory sentences, Holder should be advocating the repeal of most, if not all, federal mandatory minimum sentencing statutes. In addition to increasing the number of compassionate prison releases for medical reasons, Holder should set up procedures through which his department would make clemency recommendations to the president. And both the president and the attorney general should embrace the reality that most Americans have come to recognize that many aspects of our 40-year war on drugs have been marked by criminal justice failures. Congress should be encouraged to work toward a true public health approach to marijuana reform and regulation.

Before a new course can be set, the criminal justice ship has to navigate away from the old “get-tough” course, and that won’t be easy. So it’s perhaps understandable that Holder is, for now, talking only about the need for bold steps rather than taking them. But because the political and economic winds (not to mention the moral ones) are all starting to blow in the same direction on federal sentencing reform, the administration shouldn’t wait too long before sailing full speed ahead.

Douglas A. Berman is a professor of law at the Ohio State University Moritz College of Law and creator of the blog Sentencing Law and Policy.