Among the astonishing and often forgotten facts about the United States is that our nation of 300 million — one-twentieth of the world’s population — keeps almost a quarter of the globe’s prisoners. Lots of Americans are in prison, and not all of them have to be there. On Monday, Attorney General Eric H. Holder Jr. announced a series of reforms to change that. But there’s only so much Holder can — or should — do alone.
“We need to ensure that incarceration is used to punish, deter and rehabilitate,” Holder said, “not merely to warehouse and forget.”
That’s the right public-policy goal. So, the attorney general said, the Justice Department will seek to expand the compassionate release of prisoners who are elderly, sick or otherwise low-risk and deserving of special consideration. Its attorneys will take greater advantage of alternatives to incarceration, such as drug treatment, community service programs and other paths that might cost less than locking someone up and produce more socially desirable results. And the Justice Department will investigate disparate treatment of white and minority defendants, still a shameful fact of the country’s criminal justice system.
Those are all steps worthy of support. The proposal getting the most attention, though, is Holder’s decision to change the way the Justice Department’s prosecutors handle “certain low-level, nonviolent drug offenders who have no ties to large-scale organizations, gangs or cartels.” Instead of charging these defendants with offenses that by law carry stiff mandatory minimum sentences, Justice’s charging policies will instruct prosecutors to write their indictments in a way that doesn’t lock in severe prison terms, leading to punishments that are more appropriate. Prosecutors, for example, might leave out the amount of an illicit substance found on a defendant, instead offering that detail later in the process, when its introduction wouldn’t trigger a mandatory sentence.
This sounds uncomfortably like adjusting the crime to fit the punishment. Douglas Berman, a law professor at Ohio State University, argues that many federal prosecutors are already exercising this sort of discretion; Holder is mostly imposing consistency across the system, with an eye toward sensibly reducing the number of prisoners.
But Congress established mandatory minimums, and it is the ultimate responsibility of lawmakers to reform sentencing policy and make clear how much flexibility they want built into the system. The attorney general mentioned that a couple of bipartisan bills would give judges more discretion in sentencing, and advocates say that there doesn’t seem to be much opposition to reform. Holder’s efforts should be viewed as a way station until Congress acts, as well as a nudge to lawmakers. Passing legislation, not simply altering rules within the Justice Department, is the best and most enduring way to change the system.
The Washington Post (Aug. 14)