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August 12, 2013 12:20 PM Sentencing Reform Breakthrough?

By Ed Kilgore

Today in a speech to an ABA conference in San Francisco, Attorney General Eric Holder is expected to lay out an executive and legislative agenda for sentencing reform, aimed at significantly reducing the number of non-violent offenders (mostly collateral damage in the failed War on Drugs) in prisons.

Here’s a preview from WaPo’s Sari Horwitz:

Attorney General Eric H. Holder Jr. is set to announce Monday that low-level, nonviolent drug offenders with no ties to gangs or large-scale drug organizations will no longer be charged with offenses that impose severe mandatory sentences.
The new Justice Department policy is part of a comprehensive prison reform package that Holder will reveal in a speech to the American Bar Association in San Francisco, according to senior department officials. He is also expected to introduce a policy to reduce sentences for elderly, nonviolent inmates and find alternatives to prison for nonviolent criminals.
Justice Department lawyers have worked for months on the proposals, which Holder wants to make the cornerstone of the rest of his tenure.

As a former criminal justice policy wonk, I am exceptionally excited to hear about this grossly overdue initiative. Some of it involves prosecutorial guidelines the Justice Department can more or less self-execute:

The attorney general can make some of these changes to drug policy on his own. He is giving new instructions to federal prosecutors on how they should write their criminal complaints when charging low-level drug offenders, to avoid triggering the mandatory minimum sentences. Under certain statutes, inflexible sentences for drug crimes are mandated regardless of the facts or conduct in the case, reducing the discretion of prosecutors, judges and juries.

So a legislative fix is required as well, and what’s politically interesting is that Holder cited as a good start a bipartisan bill in the Senate:

Holder is urging passage of legislation with bipartisan support that is aimed at giving federal judges more discretion in applying mandatory minimum sentences to certain drug offenses.
“Such legislation will ultimately save our country billions of dollars,” Holder said of legislation supported by Sens. Richard J. Durbin (D-Ill.), Patrick J. Leahy (D-Vt.), Mike Lee (R-Utah) and Rand Paul (R-Ky.). “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.”

Conservative reaction to Holder’s speech will be extraordinarily interesting. Long before Rand Paul drew national attention to his own support for sentencing reform, there was a quiet movement slowly but surely developing on the Right (which David Dagan and Steven Teles wrote about in the November/December 2012 issue of the Washington Monthly) in favor of calling off the madness of mandatory minimums. Just as importantly, this trend was being fed by various tributaries of the conservative stream, not just libertarians but conservative evangelicals and budget-conscious fiscal hawks. Just last week, in fact, the American Legislative Exchange Council, which probably contributed more to the spread of mandatory minimum legislation in the states than just about any other single source, reversed its position and endorsed sentencing reform.

So Holder may be pushing on an unlocked door. Still, a whole generation of pols—mostly Republicans, to be sure, but also many Democrats trying to prove themselves as “tough on crime”—have prospered politically from the “Three Strikes” era. And the high visibility of those people in the ranks of non-violent drug offenders may give emotional pause to conservatives tempted by the massive evidence of the failure of Lock ‘Em Up and Throw Away the Key policies to admit it’s been a tragic mistake.

This could be one of those moments when a rare bipartisan breakthrough happens, or it could get complicated and gridlocked. It bears close watching in the days just ahead.

Ed Kilgore is a contributing writer to the Washington Monthly. He is managing editor for The Democratic Strategist and a senior fellow at the Progressive Policy Institute. Find him on Twitter: @ed_kilgore.

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