Hurrah for Eric Holder!

The attorney general cracks down on forfeiture abuse.

Eric Holder, on his way out the door, seems to be letting his inner criminal-justice reformer run wild. (Which, of course, he wouldn’t be doing without the OK of his boss, Barack Obama.) Latest target: forfeiture abuse.

The move bans a trick called “adoptive forfeiture.” Here’s how that trick works:

Many states require that forfeited funds be deposited in the state’s general fund, rather than going directly to the law enforcement budget. That’s a sensible provision, avoiding what would otherwise be an obvious conflict of interest. The federal government has the same rule.

BUT (you knew there was a “but” coming, didn’t you?) the federal law allows federal agencies that process a forfeiture to share the proceeds with local law enforcement agencies that contributed to the case. That avoids the state-law process which would otherwise send the money to the general fund. The “share” can be up to 90%, at the discretion of the federal agency.

So when a local agency seizes an asset, instead of handling the forfeiture through the state courts, it goes to the DEA or some other federal outfit, which “adopts” the forfeiture, takes it through federal court, and gives 90% of the take back to the locals. That, of course, creates precisely the conflict of interest the general-fund laws were designed to avoid: cops wind up paying their own salaries by taking cash and other assets from people, who in many cases are never charged with any crime and in some cases are entirely innocent. Unlike a criminal defendant, the victim of a forfeiture has very few procedural rights: no presumption of innocence – in effect, he has to sue to get the money back, and carries the burden of proof -no right to a speedy trial, and no right to publicly paid counsel.

The order excludes federal-state-local task forces, but – if I read it correctly – does include the multi-jurisdictional local task forces where much of the worst mischief has been done; some of those agencies are entirely dependent on forfeiture funds (plus Byrne Grant money) and thus under no control whatever from civilian authorities.

There’s more to be done to rein in the forfeiture system, but this is a terrific start.

Understanding and Reducing Federal Prison Overcrowding

The federal prison system faces serious challenges, but confusing it with the entire US prison system obscures how they can be addressed

The Department of Justice’s Inspector General has released a report highlighting challenges within the federal prison system. The IG correctly identifies overcrowding as a root cause of numerous other problems, including inhumane conditions for prisoners, risk to correctional officers and budgetary burden.

Unfortunately, some of the media coverage and blog commentary about the report made the mistake of equating the federal prison population with the “US prison population”. This conflation leads to a misunderstanding both of the unique nature of the problem in federal prisons and the range of the solutions, because the federal prison system is a small, atypical part of the U.S. prison system.

If you don’t know that the federal prison system is different than the (almost entirely state-run) U.S. prison system, you would misunderstand the IG report to mean that the US prison population is relentlessly rising and is increasingly composed of drug offenders. In fact, the number of people in US prisons has been dropping since 2010 and the proportion of inmates serving time for drug offenses hasn’t been so low since the 1980s.

This realization redirects attention in a productive way by raising a question: What is different about federal prisons that makes them out of step with the broader national de-incarceration trend? They differ in many ways of course, but the most critical for overcrowding is that Congress abolished parole in the federal system in 1984. Nearly three decades without the option of paroling rehabilitated inmates virtually assures that a prison system will become overcrowded.

If Congress would move to reverse that policy, and the Bureau of Prisons would do a better job of implementing Attorney General Holder’s recently proposed expansion of compassionate release (which the IG report argues is not being well used) the federal prison system would quickly fall in line with the rest of the US prison system as a contracting rather than expanding enterprise.

Holder’s Sentencing Reforms Could Increase Racial Disparities in Incarceration

Instructing federal prosecutors to use long sentences for drug dealing within organizations may increase the over-representation of people of color in prison

Attorney General Holder’s new policy on the application of mandatory minimum sentences in drug cases reserves tough sentences for offenders who work within larger organizations rather than being independent operators. Under this policy, a banker who will launder drug money for any outside drug organization may get more leniency than would a courier or lookout who is a member of single criminal organization. In a balanced appraisal of Holder’s proposal, Jonathan Caulkins points out a potential adverse impact of prioritizing offenders on this criterion:

Organizations of all ethnicities import drugs, but given the geography of production and transshipment, smuggling operations are disproportionately Hispanic. Likewise, members of all racial and ethnic groups participate in retail selling, but — with the exception of outlaw motorcycle groups — the gang members are disproportionately minorities.

The result of assuming that those criminals who work within a larger organization deserve more severe punishment may therefore be that the federal prison population over-represents Hispanics and African-Americans to an even greater extent than it does today.

An alternative approach to sentencing is to worry less about whether drug offenders are part of an organization and instead focus the toughest punishment on those individuals whose removal would most severely disrupt the overall illegal drug trade. This would be a significant departure from the longstanding law enforcement practice of sweeping up huge numbers of low-level drug offenders, most of whom are people of color who work within a gang or other large criminal organization. To quote from an op-ed Jon and I co-authored a few years back:

The US has increased incarceration for drug-law violations literally tenfold since 1980 without achieving more than temporary increases in prices. There would be little lost by halving the average sentence length for easy-to-replace functionaries within the drug distribution system (lookouts, typical retail sellers, hired hands, etc). It would also spare the public the enormous human and social costs of mass incarceration.

The Relatively Small, Atypical Federal Prison System

The federal prison system is a small and atypical part of the U.S. prison system

I praised Attorney General Holder’s proposed changes to mandatory minimum sentencing procedures in federal drug cases. That said, the way some media outlets touted them in the subsequent news cycle grossly overstated their impact by not understanding the nature of the federal prison system. If you want to comprehend the realities of correctional policy in the U.S., not just regarding Holder’s proposals but more broadly, it is essential to appreciate that the federal prison system is a relatively small and atypical part of the U.S. prison system.

It is I suppose natural to assume that what is “federal” is large and what is “state” is small, and in some public policy areas (e.g., health care) this heuristic holds. But in prison policy, it’s the other way round. At any given time between 85-90% of the U.S. prison population are in state facilities. To give a comparison point, over the years the State of California’s prison system has often held nearly as many people as does the entire federal prison system.

So when the BBC World Service reports that the Attorney General’s proposals will have a huge impact because “half of U.S. prisoners are serving time for drug offenses”, they are being hyperbolic. Drug offenders constitute a small and declining proportion of the U.S. prison population. Half of federal prison inmates are serving time for a drug conviction, but that’s only about 6% of the US prison population as a whole. The federal percentage is high because of the unusual mandate of the federal system, which picks up the farrago of cases that are not charged by states. As a result of violent criminals rarely being charged at the federal level, the percentage of all other types of crimes in the federal system goes up.

Granted, it is easy to get this nuance wrong both because it is counter-intuitive that the federal system is such a small part of the national prison system, and, because some people quote federal prison statistics in intentionally misleading ways. For example, some people with axes to grind invoke federal prison statistics to imply that half of all U.S. prisoners are serving time for drug offenses or that a sixth of all U.S. prisoners are serving time in private facilities, neither of which is true.

But even taking these possible reasons for error into account, I must say the following to the BBC World Service: When your producer calls me before a broadcast and makes this mistake about the federal prison system, and I take the time to patiently explain the difference between the federal and state systems, and then your program host repeats the false claim on the air anyway, a little bit of my wonky heart dies.

The Many Foes of Discretion in Criminal Cases

The left and the right often are against discretion in criminal justice

The Obama Administration, in the person of Attorney General Holder, has proposed reforms that are intended to make mandatory minimum sentences less common for low-level drug offenders in selected federal drug cases, and, allow federal prisoners to have compassionate early release in certain circumstances (e.g., terminal illness, death of the other parent of the prisoner’s young children). Having advocated for these sorts of changes from the inside and outside, I am very pleased by these policy proposals, but also expect that they will meet with some significant resistance, and not just from the political right.

Mandatory minimums and indeed the broader move in the 1980s towards invariant, tough sentences in drug cases is often misremembered as an entirely conservative invention. It was not, for a reason I have outlined before:

Much of the U.S. public now sees the federal government as a malign, dreaded influence in their lives. Some conservative politicians share this perspective and work hard to fan such popular fears. Meanwhile some liberal politicians see any allowance of discretion and autonomy by civil servants as an invitation to disparate treatment based on race, sex, class, disability etc. These two camps make common cause to tie down the federal government with as many rules as possible.

Many liberals supported the transformation of criminal justice penalties that occurred in the 1980s, with Tip O’Neil being the highest-profile example. Part of this had to do with many of them representing urban areas full of residents who were sick of crime. But it also had to do with many liberals’ instinctive distrust of governmental discretion. Such people argue — not without reason — that if you let judges determine sentences, some of them will hand out stiffer punishments to minority criminals than they do to white criminals convicted of the same offense. Expect at least a few leftists who gain a platform in the coming debate about Obama’s sentencing reforms to raise this concern.

My own view is that mandatory minimum sentences don’t reduce discretion so much as move it from judges to prosecutors, and more generally that (warts and all) I would rather have sentences determined by people with personal knowledge of individual criminal cases than by elected officials in a faraway city. For that reason I would like to see the Congress endorse even more governmental discretion by restoring parole within the federal prison system, which it abolished in 1984. If we are willing to have correctional officials make judgments about who deserves compassionate early release because of illnesses and family tragedies, then we should be equally willing to let the same officials make judgements about who might be released because they are rehabilitated and unlikely to re-offend.