Eric Holder’s War on Drug Sentences — a Bright Spot in Obama’s Second-Term Legacy?

The attorney general is on a mission to reform decades-old drug policies that majorities agree need changing.

National Journal
Brian Resnick
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Brian Resnick
March 13, 2014, 6:44 a.m.

Eric Hold­er’s last years as at­tor­ney gen­er­al will be marked by drugs.

Just this week, Hold­er has taken sig­ni­fic­ant ac­tion on both sides of the drug war, call­ing for a fight to curb heroin-re­lated over­doses and to also lim­it the sen­tences im­posed on drug of­fend­ers.

We knew this activ­ity was com­ing. Hold­er is mak­ing good on his “Smart on Crime” ini­ti­at­ive, which launched last spring with the un­der­ly­ing philo­sophy that “we can­not pro­sec­ute our way to be­com­ing a safer na­tion.” To Hold­er, and to many Re­pub­lic­ans as well, the stat­ist­ics on crime in Amer­ica are clear and scream­ing for an­swers. The United States has one of the highest per cap­ita pris­on pop­u­la­tions in the world, and a dis­pro­por­tion­ate num­ber of in­mates are Afric­an-Amer­ic­an.

In Au­gust, Hold­er an­nounced that low-level drug of­fend­ers (not con­nec­ted to or­gan­ized crime) would no longer be charged with crimes that im­pose man­dat­ory min­im­ums. Today, he sought to take that a step fur­ther, ad­voc­at­ing to the U.S. Sen­ten­cing Com­mis­sion a de­crease in min­im­um sen­tences for a wide range of drug of­fenses.

The pro­pos­al would re­duce drug-re­lated pris­on sen­tences by an av­er­age of 11 months (from 62 months to 51 months), de­creas­ing the fed­er­al in­mate pop­u­la­tion by 6,550 over five years. Half of Amer­ic­an in­mates are serving drug sen­tences, and those in­mates are dis­pro­por­tion­ately Afric­an-Amer­ic­an.

Re­du­cing the pris­on pop­u­la­tion by 6,550 would mean, on av­er­age, a sav­ings of $169,238,900 a year, per data from the Urb­an In­sti­tute. Money aside, the hu­man-in­terest case for sen­ten­cing re­form is easy to make. 

“This over­re­li­ance on in­car­cer­a­tion is not just fin­an­cially un­sus­tain­able; it comes with hu­man and mor­al costs that are im­possible to cal­cu­late,” Hold­er said in pre­pared re­marks to the com­mis­sion.

The Sen­ten­cing Com­mis­sion pub­lishes the guidelines that fed­er­al judges fol­low in sen­ten­cing cases. It will vote on new guidelines in April. Hold­er’s ad­vocacy rep­res­ents a grow­ing push on both the left and right for pris­on re­form. Last week, at the Con­ser­vat­ive Polit­ic­al Ac­tion Con­fer­ence, a pan­el fea­tur­ing Texas Gov. Rick Perry was un­an­im­ous in its en­thu­si­asm for pris­on re­form.

“The idea that we lock people up, throw them away, and nev­er give them a chance of re­demp­tion is not what Amer­ica is about,” Perry said. “Be­ing able to give someone a second chance is very im­port­ant.”

The changes Hold­er can make are ones par­tis­ans can agree on. In 2012, Pew found that 84 per­cent of Amer­ic­ans agreed with the state­ment, “Some of the money that we are spend­ing on lock­ing up low-risk, non­vi­ol­ent in­mates should be shif­ted to strength­en­ing com­munity cor­rec­tions pro­grams like pro­ba­tion and pa­role,” in­clud­ing 77 per­cent of Re­pub­lic­ans.

Sixty-nine per­cent of Amer­ic­ans agreed with the state­ment, “One out of every 100 Amer­ic­an adults is in pris­on. That’s too many, and it costs too much.”

As policy turns to leg­acy, this Justice De­part­ment’s ac­tions on drug crimes may just be­come a bright leg­acy in a fraught second term for this ad­min­is­tra­tion.

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