Pubdate: Sun, 25 Aug 2013
Source: Baltimore Sun (MD)
Copyright: 2013 The Baltimore Sun Company
Contact:  http://www.baltimoresun.com/
Details: http://www.mapinc.org/media/37
Author: Matt Kaiser
Note: Matt Kaiser, a Maryland resident and former state public 
defender, is an adjunct professor of law at Georgetown University and 
the founding partner of The Kaiser Law Firm.

A MINIMUM OF REFORM

Eric Holder's Changes to Sentencing Rules Will Do Little to Alter a 
Culture That Keeps Too Many Americans Locked Up for Too Long

Attorney General Eric Holder announced recently that the United 
States' practice of locking up so many of its citizens has to stop. 
News outlets almost uniformly reported that Mr. Holder was 
drastically limiting the application of mandatory minimum sentences. 
But when you look at the details of what Mr. Holder's plan is, it's 
not going to do much of anything to change the alarming rate at which 
we throw people in federal prison.

As the attorney general said, we have 5 percent of the world's 
population but 25 percent of the world's prisoners. We lock more 
people up than they do in China. Unless you think Americans are 
particularly lawless people, this reflects a serious problem with our 
criminal justice system.

Mr. Holder announced three proposals to address this problem. None 
will bring about a meaningful change to the people put in prison by 
our federal criminal justice system.

First, Mr. Holder issued a memo to federal prosecutors directing that 
they implement a technical change to how they bring federal charges 
so that fewer people are subject to draconian mandatory minimums in drug cases.

This is a great idea, but Mr. Holder's proposal doesn't go far enough 
to affect many people. Congress has already created a law called the 
"safety valve" that says if you're not a violent person, didn't have 
a gun, don't have a significant criminal history and are convicted of 
a drug crime, then you're eligible to a mandatory minimum. That's the law now.

Mr. Holder's new change states that prosecutors shouldn't apply a 
mandatory minimum sentence in a drug case to a person who is not 
violent, didn't have a gun, and doesn't have a significant criminal history.

The only difference is that "significant criminal history" is now 
slightly more relaxed. Under the safety valve law, a person is only 
eligible if they have no more than one criminal history "point," 
where one point is equivalent to one conviction with jail time of 
less than 30 days. (An average DUI gets you one point.)

So, under current law, if you have no more than one criminal point, 
you can avoid the mandatory minimum. Mr. Holder's big change? Now, if 
you have two criminal history points, you can also avoid the mandatory minimum.

Our prisons are not overflowing because the folks who are being 
prosecuted have two DUIs instead of one. This change is not going to 
reduce our shameful record of mass incarceration.

Moreover, this only applies to drug crimes. Mr. Holder is right that 
the war on drugs has caused a lot of the problem of mass 
incarceration. But it isn't the only problem. In 2012, for example, 
we sent almost as many people to prison for immigration crimes as we 
did for drug crimes, according to the federal sentencing commission.

Second, Mr. Holder proposed changing the Bureau of Prisons' programs 
around compassionate release - that is, release for people who pose 
no danger and are either very sick or very old.

Clearly, this is a good thing. It serves no law enforcement purpose 
to keep harmless people at the end of their lives away from their 
families. But we're also locking up people in the prime of their 
lives, too - and for no legitimate law enforcement purpose.

Letting the very old and the very sick out is the right thing to do, 
but it doesn't fix the problem Mr. Holder is trying to solve.

Moreover, when you look at what Mr. Holder has actually put in place, 
it's extremely limited. Now, people who are older than 65 and have 
served at least 10 years or 75 percent of their sentence (whichever 
is greater) are eligible to start the process to ask for their 
release. But only if they pose no threat to society.

It's not exactly throwing open the prison gates for these elderly people.

Finally, Mr. Holder proposed creating standards for when state cases 
are taken into federal court. Many crimes, especially drug 
distribution, can be prosecuted either in state court or in federal 
court. Frequently, a federal prosecution would result in a much 
longer prison sentence than a state prosecution. The decision about 
whether to take a case federal or state is, in a meaningful way, a 
decision about whether a person should receive a massive and 
draconian sentence.

There need to be national standards for how these decisions are made. 
That's clear. But simply creating those standards won't reduce the 
prison population by a meaningful amount without more systematic 
reform of the Department of Justice.

We have, now, an army of federal prosecutors who are working every 
day to put people in prison. These are smart, competitive and 
aggressive lawyers who went to excellent law schools and are trying 
to make a career. My firm was thinking about hiring a former federal 
prosecutor, and we called the lawyer's supervisor as a reference. We 
were told that the lawyer was a great lawyer because "he got a number 
of very substantial sentences."

No one at the Department of Justice wins an award or gets a promotion 
for deciding to walk away from a case, or advocating for a lower fair 
sentence instead of a higher one they can brag about in the office. 
And Mr. Holder's "reforms" do nothing to change that. If federal 
prosecutors aren't throwing people in prison from state court, 
they'll find other people to put in prison.

We either need to drastically reform the culture of law enforcement - 
and reward decisions to walk away as much as decisions to go forward 
- - or we need to drastically reduce the number of people who make a 
living from other people going to prison.
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MAP posted-by: Jay Bergstrom