Feds: Sweeping Changes for Low-Level Drug Offenders

By Lisa Fernandez and Sam Brock
|  Monday, Aug 12, 2013  |  Updated 10:15 PM CDT
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With the U.S. facing massive overcrowding in its prisons, Attorney General Eric Holder took to the podium in San Francisco Monday morning, calling for major changes to the nation's criminal justice system in what he described as a

With the U.S. facing massive overcrowding in its prisons, Attorney General Eric Holder took to the podium in San Francisco Monday morning, calling for major changes to the nation's criminal justice system in what he described as a "Smart On Crime" initiative. Cheryl Hurd reports.

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Holder Announces Sweeping Changes for Low-Level Drug Offenders

With the U.S. facing massive overcrowding in its prisons, Attorney General Eric Holder took to the podium in San Francisco Monday morning, calling for major changes to the nation's criminal justice system in what he described as a "Smart On Crime" initiative. Bob Redell reports.
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With the U.S. facing massive overcrowding in its prisons, Attorney General Eric Holder took to the podium in San Francisco  Monday morning, calling for major changes to the nation's criminal justice system in what he described as a "Smart On Crime" initiative.

He hopes the move - a marked change from the "war on drugs" attitude of the past four decades - will scale back the use of harsh sentences for certain drug-related crimes, cost the nation less in terms of dollars and correct what he described as an unfair disparity for men of color who are disproportionately imprisoned for low-level drug crimes. The announcement was for federal guidelines and doesn't directly address state drug charges.

His announcement drew only applause from the crowd, though one protester outside told NBC Bay Area she thought that she prefers the status quo and to keep the laws we already have on the books. And one expert at Stanford said that this news merely changes a policy and perhaps a culture.

In remarks to the American Bar Association, Holder said he also favors diverting people convicted of low-level offenses to drug treatment and community service programs and expanding a prison program to allow for release of some elderly, non-violent offenders in what he described as "compassionate release."

His point: Prison should punish and rehabilitate, not warehouse and forget.

"The bottom line is that, while the aggressive enforcement of federal criminal statutes remains necessary, we cannot simply prosecute or incarcerate our way to becoming a safer nation," Holder said in prepared remarks. "To be effective, federal efforts must also focus on prevention and reentry. We must never stop being tough on crime. But we must also be smart and efficient when battling crime and the conditions and the individual choices that breed it."
 
In the most sweeping culture change, the attorney general altered Justice Department policy so that low-level, non-violent drug offenders with no ties to large-scale organizations, gangs or cartels won't be charged with offenses that impose mandatory minimum sentences, that he called "draconian." Specifically, federal prosecutors won't file charges against low-level dealers detailing the quantity of cocaine, meth or other drugs they were caught with. And without that information, judges can't impose the five- or 10-year mandatory minimum prison terms. Until now, that discretion hasn't been allowed.

Mandatory minimum sentences, Holder said, "breed disrespect for the system. When applied indiscriminately, they do not serve public safety. They have had a disabling effect on communities. And they are ultimately counterproductive.''

The Attorney General's Office on Monday sent a memorandum to the country's 94 U.S. Attorneys offices,  telling them that prosecutors will be told that they may not write the specific quantity of drugs when drafting indictments for drug defendants who: did not involve violence, sell a weapon to minors, are not leaders of a criminal organization, have no ties to large-scale gangs, have no significant criminal history.

Holder didn't change the law, according to Robert Weisberg, co-founder of the Stanford Criminal Justice Center, because that would take an act of Congress. What he did do is tell his prosecutors to leave out details in certain drug cases in order to give judges more discretion is handing out lower sentences. This will likely change the culture of the federal prosecutor's office.

“There’s no question that [Holder] would like that mandatory minimum legislation rewritten to be more flexible and nimble, whereby the statutory criteria would really say, ‘the mandatory minimum applies for someone who is the organizational chief of the enterprise, or who is engaged in violent conduct.’ " Weisberg said. "Unless or until Congress does this, Holder simply wants U.S. attorneys, in some cases, not to allege the facts, which would be necessary to trigger the mandatory minimum.”

What remains unclear is how is how each of the U.S. Attorneys offices around the country will implement changes, given the authority of prosecutors to exercise discretion in how they handle their criminal cases. And how drug charges will be treated by county prosecutors also wasn't immediately addressed.

“A lot of the things he was talking about are things that have been going on in San Francisco for the last few years, so I’m pleased to see that,” San Francisco District Attorney George Gascón said. “It’s going to be a matter of seeing what it looks like.”

If there were any critics in the predominantly liberal San Francisco Bay Area crowd, it was hard to tell: Holder only drew applause for his remarks inside the room. Outside, there were a handful of protesters arguing to keep the sentecning policy as it was.
 
The impact of Holder's initiative on mandatory minimum sentences could be significant, says Marc Mauer, executive director of the Sentencing Project, a non-profit group involved in research and policy reform of the criminal justice system.
 
There are roughly 25,000 drug convictions in federal court each year and 45 percent of those are for lower-level offenses such as street level dealers and couriers and people who deliver drugs, Mauer said.

A disproportionate number of those convictions are for men of color, Holder pointed out, which is simply unfair - another fact that drew loud claps from the audience. African-Americans account for about 30 percent of federal drug convictions each year and Hispanics account for 40 percent,
 
Federal prisons are operating at nearly 40 percent above capacity and hold more than 219,000 inmates - with almost half of them serving time for drug-related crimes and many of them with substance use disorders.  In addition, 9 million to 10 million prisoners go through local jails each year. Holder praised state and local law enforcement officials for already instituting some of the types of changes Holder says must be made at the federal level.

Sens. Dick Durbin, D-Ill., Patrick Leahy, D-Vt., Mike Lee, R-Utah, and Rand Paul, R-Ky., have introduced legislation aimed at giving federal judges more discretion in applying mandatory minimums to certain drug offenders.
 
The attorney general said some issues are best handled at the state or local level and said he has directed federal prosecutors across the country to develop locally tailored guidelines for determining when federal charges should be filed, and when they should not.
 
"By targeting the most serious offenses, prosecuting the most dangerous criminals, directing assistance to crime `hot spots,' and pursuing new ways to promote public safety, deterrence, efficiency and fairness - we can become both smarter and tougher on crime,'' Holder said.
 
The attorney general said 17 states have directed money away from prison construction and toward programs and services such as treatment and supervision that are designed to reduce the problem of repeat offenders.

NBC Bay Area's Cheryl Hurd, Bob Redell and Pete Yost from the Associated Press contributed to this report.

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