Pubdate: Sat, 24 Aug 2013
Source: Daily Pilot (Costa Mesa, CA)
Column: It's A Gray Area
Copyright: 2013 Daily Pilot
Author: James P. Gray
Note: JAMES P. GRAY is a retired Orange County Superior Court judge. He
lives in Newport Beach.


Virtually all of us in the drug-policy and prison-sentencing reform 
movements applaud U.S. Attorney General Eric H. Holder Jr.'s comments 
Aug. 12 at the American Bar Assn. meeting in San Francisco.

This was the first time within memory that a high-ranking federal 
official has stated the obvious: that we have far too many people in 
prison in the United States and should rethink our sentencing laws.

As this column has mentioned several times, the United States has 5% 
of the world's population but 25% of its prisoners. Former U.S. Sen. 
Jim Webb of Virginia was quoted on the front page of Parade Magazine 
as saying, in reference to these statistics: "Either we are the most 
evil people in the world, or we are doing something wrong."

It's good to know that our attorney general feels that we are not an 
evil people.

But after giving him that praise, I think we really must note the 
many ambiguities in his speech. For example, he said we should modify 
our sentencing policies only for people who have "no ties to 
large-scale organizations, gangs or cartels."

Who decides who qualifies, and how can these "guidelines" be 
enforced? Hard-charging prosecutors have used their powers to 
over-charge defendants for years, thus coercing them to plead guilty 
to reduced offenses. How will Holder's guidelines change that reality?

In addition, and as Holder says, about one-half of all federal 
prisoners are serving time for drug offenses emanating from what he 
rightfully labeled the war on drugs. But as long as there is a market 
for illicit drugs, someone will provide them and make obscene amounts 
of money along the way. So until that reality is addressed, we will 
continue to fill prisons around the country with drug offenders.

Along those same lines, why did Holder not use the opportunity to 
announce his support to completely remove the sentencing disparity 
between powder and crack cocaine, which has resulted in many people 
of color serving disparately long sentences?

A few years ago, the disparity was reduced from about 20 to 1 to 5 to 
1, but why not remove it completely? And why did he also not come out 
in support of the bill pending in Congress to keep the federal 
government from interfering with people who are in compliance with 
their state's marijuana laws? Both of those measures would certainly 
reduce the number of people filling our state and federal prisons.

Furthermore, where was the substance in his comments? Holder said the 
criminal justice system is in too many respects "broken." But he is 
the leader of this system, and he has been in office for 4 1/2 years. 
Why just give speeches when you are in the position to have made 
substantive changes?

For example, what bills did he say would be considered in Congress to 
repeal or at least significantly modify mandatory minimum sentences? 
There are 93 U.S. attorneys in the nation, and their charging 
authority will only really be changed by statutes, not by Holder's guidelines.

Even more importantly, where are the comments about highly increased 
efforts to issue clemency to those people who are now serving 
unnecessarily long prison sentences? Yes, people must be held 
accountable for their actions, but even Holder acknowledged that some 
of the sentences that were required to be given under our current 
laws are "ineffective and unsustainable."

The U.S. Constitution gives his boss, President Obama, the authority, 
at the stroke of a pen, to modify some of those sentences right now. 
Why has this power not been exercised, or at least a neutral 
commission established by Holder to make recommendations to the 
president's pardons attorney?

By way of comparison, President Nixon granted 60 commutations of 
federal sentences out of 892 applications he received during his 67 
months in office, for an average of 7%. But Obama has granted only 
one commutation out of more than 8,100 applications he has received 
during his first 55 months in office, for an average of 0.01%.

These are critically important issues, particularly because if the 
federal government actually goes beyond issuing Holder's guidelines 
and instead implements specific changes, that will provide the 
political cover for public officials in many states to follow suit.

And if Holder himself needs political cover, I belong to a speaker's 
group called LEAP, which stands for Law Enforcement Against 
Prohibition. Our thousands of members consist of current and former 
judges, prosecutors, chiefs of police, Drug Enforcement 
Administration agents and others. We can give him all of the 
political cover he requires.

And there is a huge need, because hundreds of thousands of people in 
our country's prisons simply should not be there. For example, the 
largest "mental health facility" in most counties around the country 
is actually the county jail. Imagine the unnecessary harm caused to 
these mentally fragile people by being locked up for such things as 
illegal camping or self-medicating on illicit drugs.

In addition, some prisoners are truly elderly and infirm men and 
women who have already served decades on their sentences. In their 
prisons there are ramps instead of stairs, seats in the shower stalls 
and ground-up food being served because they can't digest normal 
fare. And most of them couldn't hurt you if they wanted to because 
they don't have the strength even to throw their walkers at you.

So unless these geriatrics have an aggravated past, like Charles 
Manson, the Boston Strangler, or Night Stalker Richard Ramirez (who, 
appropriately enough, just recently died in prison), many of them 
should be released outright, if only to save taxpayers the expense.

Depending on the facility, it costs taxpayers about $35,000 per year 
to keep one prisoner in custody, unless he or she is sick or elderly, 
and then the cost can easily be $100,000 or more. Even if we actually 
wanted to keep all of these people locked up, we simply cannot afford it.

And, finally, just ponder this for a moment. What if you were 
required to spend 10 years of your life in prison? Can you imagine 
wasting that much of your precious time behind bars? Or, even worse, 
how about if you had to spend an extra 10 years because of a 
mandatory minimum sentence requirement?

Yes, long sentences are appropriate for those sociopaths who see all 
of us as their legitimate prey. But, otherwise, sentences like that 
further no purpose except providing job security to the members of 
the prison guards unions.

So these are things that Holder could have addressed - and acted 
upon. Yes, his words were a good thing and well received. But so far, 
after his years in office, all we have at this point are words.
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MAP posted-by: Jay Bergstrom