12 August 2013

A Turning Point In Federal Charging And Sentencing Policies

Attorney General Holder has announced the biggest changes in the way that the federal government handles criminal prosecutions and sentencing decisions since the 1980s when long sentences for drug possession were enacted as part of the "war on drugs" with consequences that have been subject to widespread criticism ever since that time.

* The Justice Department will deliberately bring charges that lack the mandatory minimum sentences authorized by law in cases of "low-level non-violent drug offenders with no ties to gangs or large-scale drug organizations." The New York Times reports that: "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."

* Sentences will be reduced for elderly, nonviolent inmates.

* Alternatives to incarceration will be sought by the Justice Department for non-violent criminal.

The Justice Department's U.S. Attorney for each of the 94 federal judicial districts will adopt policies to implement the national about face in the war on drugs, in an effort to reduce unduly harsh (and long criticized) federal mandatory minimum sentences for drug offenses and to reduce record high incarceration rates spawned by "war on drugs" hysteria in drug sentencing.
"Too many Americans go to too many prisons for far too long and for no good law enforcement reason," Holder plans to say. "We cannot simply prosecute or incarcerate our way to becoming a safer nation.
In addition to changing how U.S. Attorneys exercise their discretion in prosecuting cases, legislative changes will give judges greater sentencing discretion that is now constrained by mandatory minimum sentences.

While no national policy was announced related to marijuana offense prosecutions for conduct that has been legalized under state law, U.S. Attorneys with jurisdiction over districts that have legalization of recreational or medical marijuana may consider adopting policies to scale back prosecutions as part of this initiative.

The Sentencing Law and Policy blog has more coverage here and here, which also surveys media reports on the announcement.


The importance of this initiative cannot be understated. The death penalty, for example, is really a sideshow compared to the routinely excessive federal incarceration sentences for relatively minor crimes.

On the other hand, the proposal may take years to have much impact, because it would do only a little to shorten the long terms being served by current inmates.

Overuse of mandatory minimum sentencing is a leading cause of racial discrimination in the criminal justice system, with blacks and Hispanics charged with mandatory minimum sentence bearing offenses in federal court and middle class whites charged with much lighter sentences in state court, when they are prosecuted at all.

U.S. incarceration rates are high, in part because federal prisons are full of non-violent offenders serving long prison terms.

The changes are anticipated to save billions of dollars in prison costs.
The cost of incarceration in the United States was $80 billion in 2010, according to the Justice Department. While the U.S. population has increased by about a third since 1980, the federal prison population has grown by about 800 percent. Justice Department officials said federal prisons are operating at nearly 40 percent over capacity.
The United States, by far, has a world's highest incarceration rate. As a quote from the New York Times story quoted above notes that although the United States "has only 5 percent of the world’s population, it has 25 percent of its prisoners."

A Snapshot of the Federal Prison System.

As of June 29, 2013, there were 219,087 people under federal correctional supervision.

Of those 47% were incarcerated for drug offenses (about 103,000), and 12% for immigration offenses, and about 10% for other non-violent offenses (this category is hard to determine from summary statistics because non-violent fraud ad violent extortion cases are lumped together).

About 31% of federal prisoners are there for violent crimes or for weapons, arson and explosives related offenses (and many of the weapons offenses not involving violent acts in the most recent offense, with the modal charge being possession of a firearm by a felon or career criminal which has a mandatory minimum sentence in federal court). A disproportionate share of violent federal offenses involve offenses on federally controlled property like national parks, or offenses on Indian reservations.

Inmates serving sentences of ten years or more make up 32.5% of inmates in federal custody.  The median sentences is more than five years in prison.   There are 57 prisoners on federal death row (just three federal inmates have been executed since 1999 despite an average of roughly 350 inmate deaths a year from illnesses, accidents, suicide and homicides).

About 35% of federal inmates are Hispanic and about 37% are Hispanic (categories that overlap slightly), while most of the remaining inmates are non-Hispanic white (about 1.8% are Native American and 1.6% are Asian). About 26% of federal prison inmates are not U.S. citizens, a category disproportionately made up of people convicted of immigration offenses.

State prisons compared

By comparison, there are currently roughly 1,350,000 inmates in state prisons, of whom about 225,000 are incarcerated for drug offenses and 53% of which are incarcerated for violent offenses.

Thus, while federal prisons house only about one in seven people in prison in the United States (some for offenses like immigration offenses for which parallel offenses don't exist under state law), federal prisons house 31% of all prisoners incarcerated for drug offenses. The proportion of long drug offense sentences in federal prisons is even greater, despite the fact that the individuals serving long federal drug sentences are often fairly low level drug offenders such as "drug mules."  The federal law provisions allowing for early release on parole or as "good time" are also more strict than in most state criminal justice systems.

Trends culminating in this announcement.

State governments that handle the bulk of criminal prosecutions and have to balance budgets and deal with more constrained resources have been trimming sentences for non-violent offenses for many years now, even in conservative Southern states.   But, the federal government, with its perennial log jam in Congress discouraging new legislation and its more ample ability to finance mass incarceration, has been slower to join the trend towards more lenient sentences for non-violent offenders.

Earlier reforms have partially mitigated the notorious 100-1 crack-powder cocaine distinction that imposed stiff mandatory minimum sentences on very minor crack offenders (a drug of choice in minority ghettos) while comparatively lenient sentences were applied to powder cocaine offenders, but didn't reject entirely the harsh regime of mandatory minimum drug sentencing despite clear injustices that resulted.

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