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What Obama's drug law reforms will (and won't) do
As is, "too many Americans go to too many prisons for far too long and for no good law enforcement reason," says Attorney General Eric Holder
Activists at a June 17 rally in Washington, D.C. calling on President Obama to end the War on Drugs.
Activists at a June 17 rally in Washington, D.C. calling on President Obama to end the War on Drugs. Alex Wong/Getty Images
O

n Monday, Attorney General Eric Holder is announcing a pretty big change in the way the Justice Department prosecutes minor drug cases. The new approach is meant to send fewer low-level, nonviolent drug users to federal prison, part of a broader effort to reduce America's bulging prison population.

The headline change seem pretty minor — Holder is ordering federal prosecutors to stop writing down the amount of drugs in certain types of small-fry cases — but the effect could be pretty dramatic. Federal mandatory minimum sentencing laws enacted in the 1980s and '90s make it so judges and juries have to hand down tough sentences for some relatively minor infractions. Charlie Savage at The New York Times gives an example of how the new guidelines should change that:

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. [New York Times]

The other changes Holder is announcing Monday include instructing federal prosecutors to leave more drug-related cases to state courts, expand the use of drug treatment and other alternatives to incarceration, and ramping up a program to secure the early release of "elderly inmates who did not commit violent crimes and have served significant portions of their sentences," according to prepared remarks.

Holder is proposing these changes as both a common-sense way to reduce spending and the right thing to do, morally. They're widely seen as something Holder wants to be remembered for, a legacy project.

"Too many Americans go to too many prisons for far too long and for no good law enforcement reason," Holder plans to say. This "imposes a significant economic burden — totaling $80 billion in 2010 alone — and it comes with human and moral costs that are impossible to calculate."

In many ways, Holder's new policy illustrates how much America has changed. Not so long ago, says Margaret Hartmann at New York, Holder's suggestions "would have drawn accusations of being soft on crime." But "as crime rates have dropped in recent years, lawmakers from both parties have been more open to reducing prison populations — with many conservatives swayed by their desire to cut government spending."

Because the Obama administration is sidestepping Congress, though, there's only so much Holder's Justice Department can accomplish. Here's a look at what this eased-up drug policy can do, and some things it cannot:

OBAMA'S POLICY CHANGES CAN:

1. Let judges give lighters sentences
Last December, federal Judge Roger Vinson told The New York Times he regretted some of the sentences he was forced to hand down, like the life sentence without parole he says he had to give Stephanie George, a nonviolent mother of three, 15 years ago. Police found a lockbox with cocaine in George's attic that she says her ex-boyfriend put there without her knowledge; the ex, Michael Dickey, and his crack-dealing associates each got less than 15 years for testifying against George.

"The punishment is supposed to fit the crime, but when a legislative body says this is going to be the sentence no matter what other factors there are, that's draconian in every sense of the word," Vinson said. "Mandatory sentences breed injustice." Holder's rules should help free up judges to use their own discretion.

2. Reduce the feds' Drug War footprint
A major goal of Holder's policy changes is to make sure federal law enforcement focuses on the biggest crimes and most dangerous criminals. And part of that push is leaving the less-serious crimes and criminals to state law enforcement.

This change should "partially reverse the trend of recent decades toward more federalization of criminal prosecutions and would shift dwindling federal resources toward the highest priorities," says Pete Williams at NBC News. Of course, states and local governments are facing their own tight budgets, and "may not welcome such a move."

3. Reduce the prison population
Holder will note on Monday that the U.S. population has grown by about a third since 1980, while America's prison population has ballooned about 800 percent. At the federal level, a lot of that expansion is due to drug policy: Nearly half of the more than 219,000 federal inmates are serving time for drug-related crimes. And federal prisons aren't just full, they're operating at almost 40 percent above capacity.

It follows that fewer drug convictions will lead to fewer federal inmates.

OBAMA'S POLICY CHANGES WON'T:

1. Reduce state and local prisoner numbers
The 219,000 federal prisoners are just a small fraction of the 9 million to 10 million people who spend time in local jails each year, and the changes to federal policy won't affect that. According to the Justice Department, the U.S. jails 25 percent of the world's prisoners, even though it has only 5 percent of the world's population.

2. Free federal prisoners already given mandatory minimum sentences
The new policies won't do anything for Stephanie George or other small-time drug offenders sentenced already. It's also not "clear whether current cases that have not yet been adjudicated would be recharged because of the new policy," says Charlie Savage at The New York Times.

3. Change the mandatory minimum laws
The upside of sidestepping Congress is that the Obama administration can act immediately, "even while Washington is at its sclerotic worst," says Marc Ambinder at The Week. The downside is that the mandatory minimum laws are still on the books. These laws are "one of the most unjust parts" of America's "grossly unjust" drug way, Ambinder says:

Mandatory minimum sentences that almost arbitrarily end meaningful lives for those who get slapped with them. Fear of black people and the need to calm the nerves of white suburbanites provided ample ammunition for white politicians in the 1970s; the crack "epidemic" re-upped panic and triggered a federal response in the mid 1980s. The laws made it easy to justify imprisoning large numbers of young black men....

One argument in favor of reducing judicial and prosecutorial discretion was that it would force the courts to treat people of different races more equally during sentencing. But the laws themselves, and their enforcement, never lived up to to the hope. Mandatory minimums for meth are now attacking poor white families. [The Week]

Holder, in his planned remarks, is expected to throw support to "promising legislation" to reform mandatory minimum laws, specifically bills being worked on by Sens. Richard Durbin (D-Ill.), Patrick Leahy (D-Vt.), Mike Lee (R-Utah), and Rand Paul (R-Ky.).

4. Reclassify how the feds' deal with marijuana or other drugs
Holder conspicuously won't do one thing in his Monday remarks, notes Sari Horowitz at The Washington Post: "Announce any changes in the Justice Department's policy on marijuana, which is illegal under federal law." Washington and Colorado have legalized pot, but it's still classified as a Class 1 federal controlled substance, so "state and local officials are confused about exactly how to proceed."

Peter Weber is a senior editor at TheWeek.com, and has handled the editorial night shift since 2008. A graduate of Northwestern University, Peter has worked at Facts on File and The New York Times Magazine. He speaks Spanish and Italian, and plays in an Austin rock band.

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