Holder will order all federal prosecutors to avert drug charges that carry mandatory minimum sentences for low-level offenders, by omitting the quantity of drugs when charges are filed, according to excerpts of the speech obtained by the New York Times. The measure, which would avert harsh sentences that start at five or ten years in prison regardless of an individual’s role in a drug offense and cannot be reduced by judges, is one of several Holder may announce today at an address to the American Bar Association’s annual meeting in San Francisco.
“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,” 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.”
The measure will apply to those defendants whose offense did not involve violence or sale to minors, who are not leaders of drug organizations, who have no significant ties to large-scale gangs or drug cartels, and who have no significant criminal history, according to the Times.
Holder’s order is a major shift in policy and could have serious repercussions on both the sentencing of drug offenders and the culture surrounding drug criminalization. Federal judges have long lamented that prosecutors tie their hands in sentencing when they charge defendants with crimes that carry mandatory minimum sentences, forcing them to sentence low-level offenders like drug kingpins and shifting a judge’s typical discretion in sentencing over to prosecutors. Judges such as John Gleeson, himself a former federal prosecutor, have for several years implored prosecutors to use their own discretion to seek lower sentences, as Holder is expected to announce today.
The move is one of several major shifts in drug sentencing policy. Three bills were recently introduced in Congress that carry major bipartisan support. The bills would give judges discretion to sentence below a statutory minimum, make retroactive a 2010 law that mitigated the racist disparity between crack and cocaine sentences, and facilitate the early release of low-level offenders least likely to re-offend.
Last week, even ALEC, the conservative, corporate-backed group that endorsed Stand Your Ground and voter ID laws reversed course on its approach to sentencing policy and adopted a model state mandatory minimum reform bill similar to one proposed in Congress.
The Justice Department also recently urged the U.S. Sentencing Commission to alter its guidelines on drug and immigration sentences to give judges more discretion. “Violent crime in the United States is now near generational lows,” the DOJ’s Jonathan Wroblewski wrote in a report to the U.S. Sentencing Commission. “At the same time, the U.S. prison population exploded and overall criminal justice spending with it.”
Other measures Holder plans to announce Monday are one to leave more crimes to state courts to handle, increased use of drug courts as an alternative to incarceration, and an expanded “compassionate release” program that allows inmates who are dying or have another major change in situation to apply for early release. Recent assessments of the early release program show that very few inmates benefit under the current review process.
Not mentioned by the New York Times is the DOJ’s policy on marijuana. Holder could send a memo similar to the one mentioned today suggesting an approach to marijuana prosecutions in the wake of two state ballot initiatives to legalize recreational marijuana. Marijuana offenses covered by state laws could also be among those Holder will leave to state courts to handle. Holder said in December and again in February that the Justice Department would announce a policy on marijuana “relatively soon.”