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August 13, 2013 8:41 AM Eric Holder Does the Right Thing on Drug Sentencing

By Mark Kleiman

The federal government keeps about 100,000 people under lock and key at any given time for drug law violations. That’s more than half of all federal incarceration, though it’s a small share of total drug-law incarceration (about 500,000, including state prisons and local jails) and a tiny share of total incarceration (a disgraceful 2.3 million).

The structure of federal drug sentences – long, mandatory sentences based on drug quantity, prior record, and various features of the defendant’s conduct (e.g., having a gun, even if there’s no evidence of actual or threatened violence) – leads to some very long terms for relatively minor players. Even for major players, it’s often not easy to see the social gain from locking them up for 15 years instead of 5. If the goals of drug policy are to reduce drug abuse while minimizing violence and disorder, the marginal benefit of an extra year in prison (representing about a $40,000 expenditure) may be close to zero for many prisoners.

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.

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 delerium.

[Cross-posted at The Reality-based Community]

Mark Kleiman is a professor of public policy at the University of California Los Angeles.

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