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In a move that could signal the beginning of the end of the war on drugs, according to criminal justice reform advocates, U.S. Attorney General Eric Holderannounced a policy shift on the sentencing of low-level drug offenders.

broken windows policing

Speaking in San Francisco at the American Bar Association on Monday, Holder signaled a departure from punishment and warehousing of people to an emphasis on rehabilitation, reentry, prevention, and reform of a broken system. He called for smart crime-fighting techniques, including a “new approach” to drug offenses that would reduce the use of harsh mandatory minimum sentencing.

“It’s clear – as we come together today – that too many Americans go to too many prisons for far too long, and for no truly good law enforcement reason,” Holder noted. “It’s clear, at a basic level, that 20th-century criminal justice solutions are not adequate to overcome our 21st-century challenges. And it is well past time to implement common-sense changes that will foster safer communities from coast to coast.”

‘This is our chance’

In a change in enforcement tactics rather than in the laws themselves, the attorney general instructed federal prosecutors to omit the quantities of illegal drugs when indicting minor, nonviolent drug offenders. As a result, the mandatory minimum sentences would not be triggered, giving judges and prosecutors more discretion. The impact—reducing America’s burgeoning prison population—is potentially great. Holder believes that federal prosecutors should not charge every defendant who is accused of breaking federal law, as states and localities are better positioned to handle certain issues. Further, Holder directed U.S. attorneys to create anti-violence strategies for severely crime-ridden areas.

“This is our chance – to bring America’s criminal justice system in line with our most sacred values,” Holder said. “Today, a vicious cycle of poverty, criminality, and incarceration traps too many Americans and weakens too many communities. And many aspects of our criminal justice system may actually exacerbate these problems, rather than alleviate them.”

The decriminalization of drugs and the reform of draconian sentencing receive bipartisan support. There is a fiscal and economic reason behind such a policy shift. According to Holder, massive incarceration imposes a high economic burden on the country, including $80 billion in 2010 alone, not to mention the incalculable human and moral costs. “Ultimately, this is about much more than fairness for those who are released from prison. It’s a matter of public safety and public good. It makes plain economic sense,” Holder added.

The attorney general spoke out against the collateral consequences of crime, those regulations which impose further punishment on those convicted of crimes, such as restrictions on housing and employment. Further, Holder called for more funding for public defenders, urging Congress to end the forced budget cuts which have decimated indigent defense systems and threatened equal access to justice for the poor.

The bottom line is that, while the aggressive enforcement of federal criminal statutes remains necessary, we cannot simply prosecute or incarcerate our way to becoming a safer nation. To be effective, federal efforts must also focus on prevention and re-entry. We must never stop being tough on crime. But we must also be smart and efficient when battling crime and the conditions and the individual choices that breed it.

An ‘enormous step forward’

In an official statement, National Bar Association President Patricia Rosier stated, “The NBA has long been an advocate for reform relative to the disparities in mandatory prison sentencing that disproportionately impacts communities of color. We applaud Attorney General Holder’s statements today as they are the first step in confronting and extinguishing these disparities and inequalities that exist within our communities.”

Bryan Stevenson—a professor at NYU Law School and the founder and executive director of the Equal Justice Initiative—called the Holder speech an “enormous step forward” and “a very significant change.” In an interview on the Rachel Maddow Show, Stevenson elaborated on the role of judicial and prosecutorial discretion in the federal drug laws.

“You know when we passed mandatory minimum laws everybody thinks that it eliminated discretion, but in fact it didn’t. It took discretion away from judges and it actually gave it to prosecutors,” he said. “And today the attorney general said he’s going to exercise that discretion in a way that actually reduces the number of people being sent to prison for these long prison sentences for low-level, nonviolent drug crimes,” Stevenson added.

The Holder announcement would only directly impact the federal system, which accounts for about 10 percent of people incarcerated in the U.S. According to the Federal Bureau of Prisons, the nearly 219,000 inmates in the federal prison system are disproportionately of color, including 37.1 percent African-American and 34.9 percent Hispanic. Further, 46.8 percent of offenses are drug related, and only 11.2% of prisoners have a high security level. While 28.6 percent of federal inmates are medium security, 56.4 percent are low or minimum security.

However, experts believe the leadership demonstrated by Holder and the Obama administration could filter down to the states, the crucible for most of America’s mass incarceration problem. The four-decade war on drugs— a creation of the federal government— has fueled a mass incarceration explosion in the U.S., making the country the world’s largest jailer.

With 5 percent of the world’s population, the U.S. accounts for one quarter of the world’s prisoners. From 1980 to 2008, the number of incarcerated Americans jumped from 500,000 to 2.3 million, a fourfold increase, according to the NAACP (during that time, the federal prisons have grown 800% and are still 40% above capacity, while the U.S. population grew by a third). And as the victims of racially disparate drug sentencing, blacks and Latinos account for 58% of the prisoners.

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While five times as many whites use drugs as blacks, blacks are sent to prison for drug offenses at 10 times the rate of whites. In addition, African-Americans are 12 percent of drug users, but they are 38 percent of people arrested for drug possession, and 59 percent of people in state prison for drugs.

Moreover, according to the Sentencing Project, African-Americans serve nearly as much time behind bars for drugs (58.7 months) as whites for violent crimes (61.7 months).

Stevenson notes the “politics of fear and anger” have paralyzed lawmakers for years, preventing them from enacting effective policies and allowing them to cling to failed policies such as mandatory minimums and “three strikes” laws. The feds have served as a corrupting influence on the states by empowering them to create drug task forces, in his view, leading to the over-prosecution of drug crimes and a focus on marijuana, and the under-prosecution of murders and rapes. “Drug policy has been misguided for so long that I’m hoping it inspires a healthier conversation about how to move forward,” he said.

“For years, our elected leaders tried to outdo one another in looking ‘tough on crime’ by proposing more and more severe — and unreasonable — mandatory sentences for drug crimes,” said 34-year policing veteran Major Neill Franklin, the executive director of Law Enforcement Against Prohibition, a group of 100,000 law enforcement officials and others opposed to the war on drugs.

“These sentences were based on political considerations rather than sound policy making, and for decades we have been paying the price for that, with drug dealers often serving longer sentences than murderers and other violent criminals,” Franklin offered. “This is a good step in the right direction to reduce overcrowding prisons, but does little to reduce the harms of the war on drugs generally. I hope it is merely the first step toward a more sensible drug policy that treats consensual drug activity as a matter of public health rather than a matter for law enforcement.”

“The attorney general’s remarks represent a good first step toward scaling back the failed ‘war on drugs.’ These proposals will allow some people charged with drug offenses to have opportunities to put their lives back together sooner and will save taxpayers some money that is now being wasted putting human beings in cages for no good reason whatsoever,” said Tom Angell, Chairman of the Marijuana Majority.

“However, the criminal justice system should not just have less of a role in the effort to address the medical problem of drug abuse, it should have no role.”

Angell and other drug policy reform advocates believe the value of Holder’s proposals will be in their implementation. “For example, despite a 2009 Justice Department memo urging U.S. attorneys not to go after marijuana businesses that are legal under state law, more state-legal medical marijuana providers were shuttered by federal actions during the first term of the Obama administration than were closed during George W. Bush’s two terms,” Angell said. He also noted the Obama administration has yet to announce its response to the laws legalizing marijuana in Colorado and Washington.

Meanwhile, Stevenson believes that with policies outlined by Holder, the country can cut America’s prison population in half in 6 to 8 years. The stakes are high. “We have the highest rate of incarceration in the world. We are decimating communities. A black boy born in 2000 has a 32 percent chance of going to jail or prison. That is a shocking and really disturbing reality. We’ve got to make some changes. But I also think we have to think more fundamentally about crime and punishment.”

“Attitudes of suspicion and contempt stemming from slavery, the systemic establishment of the black man as an inferior person, still have consequences on our society today,” says Gary Walker, President of IRP Solutions Corporation. Walker is one of the IRP6, a group of six Colorado businessmen–five African-American and one white–who were convicted of mail and wire fraud and have been incarcerated in a federal prison since the summer of 2012. The men and their supporters, including the criminal justice reform organization A Just Cause, claim they were wrongfully convicted as a result of an overzealous, racially-motivated prosecution. “There is a sentencing disparity that exists between blacks and whites convicted of the same crime, and there is little or no presumption of innocence until proven guilty for blacks,” Walker added.

Holder’s remarks to the ABA came on the same day that a federal judge found the New York Police Department’s Stop-and-Frisk policy unconstitutional. Between 2004 and 2012, 83 percent of the 4.43 million stops were of blacks and Latinos, who barely make up more than 50 percent of the city’s population. Police conducted frisks for weapons and drugs on these individuals without any legal justification for stopping them in the first place. Moreover, while young men of color were disproportionately stopped and subjected to force by police, criminal activity was found in rare cases, and whites were more likely to possess weapons or contraband.

According to the ruling, the NYPD “policy of indirect racial profiling” violated the rights of thousands of black and Latino men— a disregard for the Fourth Amendment protection against unreasonable searches and seizures, and the Fourteenth Amendment guarantee of equal protection.

David A. Love

“The bottom line is that, while the aggressive enforcement of federal criminal statutes remains necessary, we cannot simply prosecute or incarcerate our way to becoming a safer nation. To be effective, federal efforts must also focus on prevention and reentry. We must never stop being tough on crime. But we must also be smart and efficient when battling crime and the conditions and the individual choices that breed it.”

David A. Love
The Grio

Wednesday, 14 August 2013