Eric Holder does the right thing on drug sentencing

The federal government keeps about 100,000 people under lock and key at any given time for drug law violations. That’s more than half of all federal incarceration, though it’s a small share of total drug-law incarceration (about 500,000, including state prisons and local jails) and a tiny share of total incarceration (a disgraceful 2.3 million).

The structure of federal drug sentences – long, mandatory sentences based on drug quantity, prior record, and various features of the defendant’s conduct (e.g., having a gun, even if there’s no evidence of actual or threatened violence) – leads to some very long terms for relatively minor players. Even for major players, it’s often not easy to see the social gain from locking them up for 15 years instead of 5. If the goals of drug policy are to reduce drug abuse while minimizing violence and disorder, the marginal benefit of an extra year in prison (representing about a $40,000 expenditure) may be close to zero for many prisoners.

Today Attorney General Eric Holder announced a policy under which federal prosecutors will be encouraged not to plead the specific features of a case that lead to lengthy terms unless there’s some good reason to do so. That might seem like common sense. And, indeed, it used to not only common sense but standard practice. When I went to work for the Justice Departmetn in 1979, prosecutors were still quoting the old maxim that “The government carries its case when justice is done.”

That traditional view created an asymmetry in the system; the defense lawyer isn’t supposed to seek justice, but to zealously advocate for the interest of the defendant in being punished either not at all or as little as possible. There’s an alternative – in my view, discreditable – prosecutorial mind-set that restores the symmetry by making the prosecutor just as much a zealous advocate as the defense counsel. If the defense is seeking the minimum penalty, why shouldn’t the prosecutor seek the maximum? Mandatory-sentencing laws mean that the prosecutor doesn’t have to persuade a judge that the defendant deserves decades in the clink.

When Richard Thornburgh was Attorney General, he made that “notches-on-the-gunbelt” approach to prosecution official policy by recommending that in every case the prosecutor charge the most serious offense for which jury-worthy proof was available. John Ashcroft made that an absolute rule, with supervisory approval required for any exception. (In practice, of course, the maximum charge is more or less the opening bid in the bargaining over a guilty plea and “cooperation” against other defendants.) Holder had already partially reversed that position, calling for an “individualized assessment” of each case; today’s announcement creates a presumption against charging the specific acts that lead to mandatory minimum sentences unless there’s a reason to do so.

It’s hard to tell from the bare-bones official statement just how much of a difference today’s announcement will make. It doesn’t go as far as I might have gone, by requiring that a prosecutor who wants to ask for more than five years in a case not involving violence specifically justify that decision and have it approved in Washington. But in principle it’s the right thing to do, and the fact that Holder now thinks he can do it safely (unlike the situation with five-year crack mandatory, a problem that also could have been fixed administratively without waiting for legislation) suggests that some aspects of drug policy, and criminal-justice policy more generally, are – slowly and belatedly – recovering from their forty years of agitated delirium.

Comments

  1. Ebenezer Scrooge says

    Mark’s post hints at a problem that has affected the legal profession as a whole, not just criminal law.

    It used to be that lawyers were expected to be zealous advocates for their clients within the scope of their representation, and public-spirited citizens outside. At any law reform conclave, a lawyer was expected to “check your clients in at the door.” For example, the same tax lawyers who invented ingenious loopholes for their clients would frequently argue against them in public fora. This rhetoric was still around in the late 1980′s, but the reality was changing, at least for Biglaw, which I know best. Now, even the rhetoric is gone. A lawyer is expected to represent the interests of the clients in any forum, at any time, for any aspect. This new norm cannot work if their clients have heterogenous interests, so lawyers are now constrained in their representation of clients. This constraint was always there in labor law, but now seems to have infected just about every branch of law that I know of. A Biglaw firm can do death penalty cases to its heart’s content, but can never ever ever advocate for a mortgagee.

    I wonder if the changes in prosecutorial mindset cited by Mark were driven, in part, by an increased parochialization of the legal profession?

    • Keith Humphreys says

      I am not a lawyer Ebenezer, but are you sure you are not romanticizing the past? The general public knew about zealous prosecutors enough to understand Perry Mason’s constant admonitions to Hamilton Berger on this point, and that was way before the 1980s.

      • paul says

        Certainly when I was interviewing career prosecutors in the 80s, many of them clearly believed that not being guilty was a technicality best overridden.

        • Mitch Guthman says

          As someone who was actually a prosecutor in the 1980′s and who went became friends with prosecutors from many other offices through training programs of the National District Attorneys Association, I can honestly say that I never once encountered anybody in law enforcement who believed that. I find it difficult to believe that any prosecutor or former prosecutor would say such a thing to you. Everybody’s entitled to their opinion, but I believe yours is ill-informed and wrong.

          • NCG says

            I don’t know many criminal prosecutors personally, so I don’t know. But there’s one of those urban legend? stats, that says 98% of defendants are guilty. Of course that could be based on the plea bargain system, which imo is a big problem. So, I don’t know that this view is as rare as you suggest.

    • NCG says

      I have no idea what was true in the past. But perhaps many of us now agree(?), that the system is too tilted towards prosecutors in that they are more likely to end up as judges and politicians later on. This needs to stop.

  2. Pococurante says

    How is this not another repeat of the deportation and the medical marijuana announcements, with field offices disregarding Holder’s public statement and instead ramping up still more draconian behavior?

  3. says

    The problem is we won’t know if he is actually dialing down the war on drugs until we see the policy in action. Remember, this administration promised to leave medical marijuana alone too, and didn’t.

    There’s plenty of room for the administration to continue to fight its futile, racist war on drugs (and no, just because Holder and Obama are black doesn’t give them the right to disproportionately lock up young black males, it just makes the betrayal worse, just like the black cops in NWA’s classic “F— the Police”), if they define enough people as “high level” or “violent”, define anyone with a gun and drugs in their possession as “using” the gun, or use an overly broad definition of “selling to minors”. I don’t trust these people for a minute.

    What they should do is simply stop enforcing the federal drug laws, period. It’s a state issue anyway, many state statutes allow for more discretion, the federal prisons already have way too many drug offenders (many of whom should be immediately pardoned for their victimless crimes), Raich is wrongly decided and the federal government shouldn’t even have the power to enforce these laws against local drug dealing, and locking up people for dealing drugs is completely ineffective, as the war on drugs is a total failure. But imprisoning black people is fun, and they can’t stop themselves.

    • Mitch Guthman says

      Holder didn’t actually say that he was dialing anything back and based on the type of cases that are typically handled in federal court, I think you’re going to be very disappointed. He certainly didn’t say that he was going to stop enforcing federal drug laws and, more importantly, if you look at who gets charged with drug related crimes in federal court, it is almost always people involved in organized trafficking.

      In the first place, most of the law level people prosecuted in federal court are selected for prosecution there because of the ease of conviction and because law enforcement wants their cooperation. As I mentioned on a previous thread, most of the low level people who get charged in the way Holder is describing are being hammered to force them to roll over which most of those charged are reluctant to do because the drug business is very dangerous and cooperation can lead not only to the cooperators death but to the murder of his entire family, too. Nevertheless, once the decision is made to hold these kinds of charges (with extraordinarily harsh penalties)there’s simply no way back for the government. The prisoner’s dilemma is much of a dilemma if you get the same benefit for not confessing as you do for confessing.

      Similarly, many of the very long sentences for things like using a gun in a drug offense, selling drugs near schools, and so forth are enhancements which would be far more difficult to justify not charging than trying to explain to the public (including the African-American public) why you put somebody selling drugs near a school or some heavily armed escapee from a rap video back in the community on probation.

      In fact, most of the people involved in drugs who get these extreme sentences without being part of a trafficking organization are extreme outliers. By far the bulk of narcotics cases, including for street level trafficking, are prosecuted in state courts. My guess is that Holder’s policy isn’t going to make much of a difference in the drug-related federal prison population. As an aside, the thing that might make a difference in sending a lot of garden variety, street level arrests for things like bank robbery to federal court. Again, just guessing, but I think these sorts of crimes probably account for a bigger share of people serving extremely long sentences in federal prison than narcotics related crimes.

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