- The Washington Times - Monday, August 12, 2013

Calling for a major shift in the criminal justice system away from harsh prison sentences for certain drug crimes, Attorney General Eric H. Holder Jr. on Monday drew fiscal conservatives and civil rights advocates closer on a bipartisan reform effort that has eluded lawmakers for decades.

The Holder announcement is the latest step in a growing national movement to right what criminal justice analysts have long characterized as disparate sentencing guidelines affecting primarily blacks and Hispanics in drug cases.

Federal prisoners account for roughly 10 percent of those incarcerated in the United States, but that percentage has grown rapidly under existing federal mandatory minimum sentencing requirements, according to Grover Norquist, a conservative libertarian Republican and founder and president of Americans for Tax Reform. “Where’s he been for five years?” Mr. Norquist said on Monday, claiming that the Holder directive simply cribs from legislation by Democratic Sens. Richard J. Durbin of Illinois and Patrick J. Leahy of Vermont, along with Republicans Mike Lee of Utah and Rand Paul of Kentucky, that would give federal judges greater discretion in sentencing certain drug offenders.

In the House, Rep. Jason Chaffetz, Utah Republican, and Robert C. “Bobby” Scott, Virginia Democrat and ranking member on the House Judiciary subcommittee on crime, terrorism, homeland security, and investigations, also have introduced legislation to reduce recidivism and federal prison costs through post-sentencing risk assessments and other evidence-based programs developed by states.

Mr. Holder is taking an idea already put together by Sens. Rand Paul and Patrick Leahy,” Mr. Norquist told The Washington Times. “Instead of changing the law, he’s saying we’ll charge criminal defendants with lesser crimes to avoid mandatory minimums. By doing it through executive order he creates an order that a new president could just as easily do away with.”

The federal prison system is operating at nearly 40 percent overcapacity, according to the Justice Department, costing taxpayers as much as $800 billion a year. Officials attribute that in part to sentencing guidelines for drug offenses, including marijuana, under the Anti-Drug Abuse Act of 1986, which mandated the same minimum sentencing for possession of five grams of crack cocaine as for possession of 500 grams of powder cocaine.

Mr. Norquist said legislative efforts at the state level have informed the need for Congress to act. In Texas, for instance, the “Right on Crime” program has saved the state $2 billion by strengthening alternatives to incarceration rather than building more jails. Congress is wise to follow such examples, he said.

“You can save money by deciding who you want in prison and for how long as opposed to a one-size-fits-all approach,” he said. “It’s good to move in that direction, but if anything, [Mr. Holder] is doing something that would’ve been done anyway.

“There’s no value added by him taking the lead.”

But others praised Mr. Holder’s announcement, and drug policy specialists Monday urged President Obama to do more, including nominating a drug czar to prioritize reduction of the federal prison population and undo racial disparities, using his pardon and commutation power to let certain nonviolent drug offenders out early, and issuing directives keeping federal law enforcement from interfering with state efforts to regulate marijuana instead of criminalizing it. In all, 20 states and the District of Columbia have legalized marijuana for medical use, two states have put marijuana on a par with alcohol and more states will likely adopt major marijuana reform in 2014 and 2016.

At the same time, those observers also encouraged the Obama administration to support the bipartisan legislation moving through Congress, saying that federal law should change to let states continue to try new approaches that reduce incarceration.

“There’s been a failure of leadership on the issue but we’re beginning to see it,” said Bill Piper, director of national affairs for the Drug Policy Alliance. “The states have been leading the way and its good to see the federal government catching up.”

James E. Felman, one of Florida’s top non-white collar criminal defense attorneys and a former co-chair of the American Bar Association’s Criminal Justice Section Sentencing Committee, said he has “not been happy about the last several decades” of federal inaction on the issue of prison reform, which is becoming more urgent as the Bureau of Prisons is accounting for a greater percentage of the Justice Department budget. “States faced the crunch more quickly than the federal government so some of this being driven by economic factors,” he said.

He demurred on the subject of Congress‘ role in the matter. “There are lots of topics and lots of bills,” he said. “What’s exciting is it’s a big day for fiscal conservatives and civil rights advocates, a complete win-win.”

Civil rights advocates tempered their enthusiasm with calls for additional reform, and, above all, a continued focus and leadership on the topic. “This is the first speech by any Attorney General calling for such massive criminal justice reforms,” The American Civil Liberties Union said in a statement, pointing to potential fixes in Mr. Holder’s speech that the group supports, such as expanding eligibility for compassionate release from prison and identifying and sharing best practices for diversion programs. “It’s great Holder is leading the way, but there is a limit to what he can accomplish by executive action alone,” the statement said. “Congress needs to step up.”

The ACLU also urged the Justice Department to require U.S. Attorneys to examine sentencing disparities and develop recommendations to address them.

Ronald C. Machen Jr., U.S. attorney for the District of Columbia, said his office has been leaders “in adopting many of the reforms that the Attorney General championed today, particularly in the area of drug treatment and community service initiatives that serve as effective alternatives to incarceration.”

Mr. Machen pointed to D.C. Superior Court’s drug intervention program, known as “drug court,” which he said diverted non-violent offenders into comprehensive treatment programs, and greater use of social service programs, mental health treatment and community service as alternatives to incarceration.