Justice Dept. Seeks to Curtail Stiff Drug Sentences

By CHARLIE SAVAGE

Published: August 12, 2013 

WASHINGTON — In a major shift in criminal justice policy, the Obama administration moved on Monday to ease overcrowding in federal prisons by ordering prosecutors to omit listing quantities of illegal substances in indictments for low-level drug cases, sidestepping federal laws that impose strict mandatory minimum sentences for drug-related offenses.

Attorney General Eric H. Holder Jr., in a speech at the American Bar Association’s annual meeting in San Francisco on Monday, announced the new policy as one of several steps intended to curb soaring taxpayer spending on prisons and help correct what he regards as unfairness in the justice system, according to his prepared remarks.

Saying that “too many Americans go to too many prisons for far too long and for no good law enforcement reason,” Mr. Holder justified his policy push in both moral and economic terms.

“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,” Mr. Holder’s speech said. “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.”

Mr. Holder also introduced a related set of Justice Department policies that would leave more crimes to state courts to handle, increase the use of drug-treatment programs as alternatives to incarceration, and expand a program of “compassionate release” for “elderly inmates who did not commit violent crimes and have served significant portions of their sentences.”

The policy changes appear to be part of Mr. Holder’s effort, before he eventually steps down, to bolster his image and legacy. Turmoil over the Congressional investigation into the botched Operation Fast and Furious gun trafficking case ensnared him in the Obama administration’s first term, and more recently, controversy has flared over the department’s aggressive tactics in leak investigations.

In recent weeks, he has also tightened rules on obtaining reporters’ data in leak cases and started an effort to strengthen protections for minority voters after the Supreme Court struck down part of the Voting Rights Act of 1965. The move continued an assertive approach to voting rights and other civil rights enforcement throughout his tenure.

Mr. Holder’s speech on Monday deplored the moral impact of the United States’ high incarceration rate: although it has only 5 percent of the world’s population, it has 25 percent of its prisoners, he noted. But he also tried to pre-empt political controversy by painting his effort as following the lead of prison reform efforts in primarily conservative-led Southern states.

Under a policy memorandum being sent to all United States attorney offices on Monday, according to an administration official, prosecutors will be told that they may not write the specific quantity of drugs when drafting indictments for drug defendants who meet the following four criteria: their conduct did not involve violence, the use of a weapon or sales to minors; they are not leaders of a criminal organization; they have no significant ties to large-scale gangs or cartels; and they have no significant criminal history.

For example, in the case of a defendant accused of conspiring to sell five kilograms of cocaine — an amount that would set off a 10-year mandatory minimum sentence — the prosecutor would write that “the defendant conspired to distribute cocaine” without saying how much. The quantity would still factor in when prosecutors and judges consult sentencing guidelines, but depending on the circumstances, the result could be a sentence of less than the 10 years called for by the mandatory minimum law, the official said.

It is not clear whether current cases that have not yet been adjudicated would be recharged because of the new policy.

Amid a rise in crime rates a generation ago, state and federal lawmakers began passing a series of “tough on crime” laws, including mandatory minimum sentences for drug possession. But as crime rates have plummeted to 40-year lows and reduced the political potency of the fear of crime, fiscal pressures from the exploding cost of building and maintaining prisons have prompted states to find alternatives to incarceration.

Driven in part by a need to save money, several conservative-leaning states like Texas and Arkansas have experimented with finding ways to incarcerate fewer low-level drug offenders. The answers have included reducing prison terms for them or diverting them into treatment programs, releasing elderly or well-behaved inmates early, and expanding job training and re-entry programs.

The policy is seen as successful across the ideological divide. For example, in Texas, which was an early innovator, taxpayers have saved hundreds of millions of dollars on what had been projected as a need to build prison space. With crime rates remaining at generational lows, the space is no longer necessary.

Several years ago, a group called Right on Crime formed to push what it calls the “conservative case for reform.” Its Republican affiliates include Jeb Bush, a former Florida governor; Edwin R. Meese III, an attorney general during the Reagan administration; and Newt Gingrich, a former House speaker.

“While the federal prison system has continued to slowly expand, significant state-level reductions have led to three consecutive years of decline in America’s overall prison population — including, in 2012, the largest drop ever experienced in a single year,” Mr. Holder’s speech said. “Clearly, these strategies can work. They’ve attracted overwhelming, bipartisan support in ‘red states’ as well as ‘blue states.’ And it’s past time for others to take notice.”

Still, in states that have undertaken prison and parole overhauls, the changes were approved by state lawmakers. Mr. Holder’s reform is different: instead of going through Congress for legislation to modify mandatory minimum sentencing laws, he is invoking his power of prosecutorial discretion to sidestep them.

Earlier in Mr. Obama’s presidency, the administration went through Congress to achieve policy goals like reducing the sentencing disparity between crack and powder forms of cocaine. But it has increasingly pursued a strategy of invoking unilateral executive powers without Congress, which the White House sees as bogged down by Republican obstructionism.

Previous examples, like Mr. Obama’s decision last year to issue an executive order allowing immigrants who came to the United States illegally as children to remain without fear of deportation and to work, have drawn fire from Republicans as “power grabs” that usurp the role of Congress.

Mr. Holder’s speech marched through a litany of statistics about incarceration in the United States. The American population has grown by about a third since 1980, he said, but its prison rate has increased nearly 800 percent. At the federal level, more than 219,000 inmates are currently behind bars — nearly half for drug-related crimes — and the prisons are operating at nearly 40 percent above their official capacity. 

 A version of this article appeared in print on August 12, 2013, on page A1 of the New York edition with the headline: Dept. Of Justice Seeks To Curtail Stiff Drug Terms.