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August 13, 2013 9:52 AM What Holder’s New Policy Actually Accomplishes

By Ed Kilgore

Like a lot of observers, I probably wasn’t too precise yesterday in explaining what Attorney General Eric Holder actually did in the Justice Department policy change he announced yesterday in San Francisco, beyond endorsing bipartisan legislation to change federal mandatory minimum sentencing rules in cases involving non-violent (and usually drug law) offenders.

So like I’ve been doing off and on for nearly two decades, let me rely on UCLA professor of Public Policy Mark Kleiman. In a post at The Reality-Based Community, Kleiman explains the key role of federal prosecutors in triggering the mandatory minimum sentences that have contributed so much to overcrowded prisons and individual injustice, particularly at the federal level:

Today Attorney General Eric Holder announced a policy under which federal prosecutors will be encouraged not to plead the specific features of a case that lead to lengthy terms unless there’s some good reason to do so. That might seem like common sense. And, indeed, it used to not only common sense but standard practice. When I went to work for the Justice Departmetn in 1979, prosecutors were still quoting the old maxim that “The government carries its case when justice is done.”
That traditional view created an asymmetry in the system; the defense lawyer isn’t supposed to seek justice, but to zealously advocate for the interest of the defendant in being punished either not at all or as little as possible. There’s an alternative - in my view, discreditable - prosecutorial mind-set that restores the symmetry by making the prosecutor just as much a zealous advocate as the defense counsel. If the defense is seeking the minimum penalty, why shouldn’t the prosecutor seek the maximum? Mandatory-sentencing laws mean that the prosecutor doesn’t have to persuade a judge that the defendant deserves decades in the clink.
When Richard Thornburgh was Attorney General, he made that “notches-on-the-gunbelt” approach to prosecution official policy by recommending that in every case the prosecutor charge the most serious offense for which jury-worthy proof was available. John Ashcroft made that an absolute rule, with supervisory approval required for any exception. (In practice, of course, the maximum charge is more or less the opening bid in the bargaining over a guilty plea and “cooperation” against other defendants.) Holder had already partially reversed that position, calling for an “individualized assessment” of each case; today’s announcement creates a presumption against charging the specific acts that lead to mandatory minimum sentences unless there’s a reason to do so.

To put it another way, mandatory minimum sentencing laws tie the hands of judges (as they were intended to do, in pursuance of the conservative meme that “permissive judges” were undermining the tough justice needed to Win the War on Drugs), but not of prosecutors. A general shift away from mass incarceration of non-violent offenders involves a return to common sense for both judges and prosecutors. The former requires legislative changes, but the latter can be accomplished in no small part simply by a refinement of the Justice Department policies for federal prosecutors.

Kleimann applauds Holder’s action, but suggests it is not only long overdue but might be approached more boldly:

It’s hard to tell from the bare-bones official statement just how much of a difference today’s announcement will make. It doesn’t go as far as I might have gone, by requiring that a prosecutor who wants to ask for more than five years in a case not involving violence specifically justify that decision and have it approved in Washington. But in principle it’s the right thing to do, and the fact that Holder now thinks he can do it safely (unlike the situation with five-year crack mandatory, a problem that also could have been fixed administratively without waiting for legislation) suggests that some aspects of drug policy, and criminal-justice policy more generally, are - slowly and belatedly - recovering from their forty years of agitated delirium.

“Agitated delirium” is a pretty good phrase for many aspects of the War on Drugs, and for sentencing policies even before War was declared. I recall talking to a Senate staffer at the height of the drive in the mid-1980s to “toughen” drug laws just before a late-night session in which the items on the calendar were some antitrust exemption for brewers and a mandatory minimum law. “After dinner the senators are going to be on beer,” he joked, “but around midnight they’re going to go on drugs.” It wasn’t so funny after all.

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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