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Is Eric Holder Providing Change We Can Believe In?

I’m very excited about our new President. I like his pick for Attorney General a lot. And I really like the signals he’s sending. But I don’t think the great words we’re hearing are resulting in much action to improve the lot of people being charged in federal court.

Lanny Breuer, who runs the Criminal Division of the Department of Justice, came out forcefully in support of eliminating

Just words?

the disparity between the sentences for crack and powder cocaine. Indeed, as Lanny Breuer put it, “[t]he administration believes Congress’s goal should be to completely eliminate the sentencing disparity between crack cocaine and powder cocaine.”

Similarly, at the Vera Institute of Justice last month, Attorney General Eric Holder gave a dramatic address laying out his philosophy of criminal justice enforcement. Here are some of my favorite parts (with emphasis added),

[J]ust as everyone should concede that incarceration is part of the answer, everyone should also concede that it is not the whole answer. Simply stated, imprisonment is not a complete strategy for criminal law enforcement.

To begin with, high rates of incarceration have tremendous social costs. And, of course, there also is the matter of simple dollars and cents, and the principle of diminishing marginal returns. Every state in the union is trying to trim budgets. States and localities are laying off teachers and canceling sanitation department shifts, but in almost all cases, spending on prisons continues to increase. Not only is this unsustainable economically, but it is also not proving to be effective at fighting crime. For while prison building and prison spending continue to increase, public safety is not improving. Since 2003, spending on incarceration has continued to rise, but crime rates have flattened. Indeed, crime rates appear to have reached a plateau, and no longer respond to increases in incarceration.

I agree with all of this. There is, though, a sleight of hand here – the Attorney General focuses on prison construction and spending. Of course, someone has to fill all those prisons. Many of those people work for him. But, he’s right about the larger point that simply filling prisons is not a viable, humane, or just law enforcement strategy.

And check out what the Attorney General is saying about drug crimes,

One specific area where I think we can do a much better job by looking beyond incarceration is in the way we deal with non-violent drug offenses. We know that people convicted of drug possession or the sales of small amounts of drugs comprise a significant portion of the prison population. Indeed, in my thirty years in law enforcement, I have seen far too many young people lose their claim to a future by committing non-violent drug crimes.

I couldn’t agree more with these statements. Holder has the right attitude on where law enforcement should go, and what criminal justice policy should be.

But does any of it matter? Is it changing the behavior of line attorneys? Are defendants in federal criminal court being treated any different because Eric Holder is the Attorney General? I think the answer is no.

If you have questions about how federal criminal charges are different than state criminal charges, please visit this page on Maryland federal criminal charges or Washington DC federal criminal charges.

Obama doesn’t seem to be in a hurry to replace U.S. Attorneys who were appointed by President Bush. Those U.S. Attorneys, in turn, hire the line prosecutors who make the basic charging decisions that largely determine how much time criminal defendants get in federal court. Can we meaningfully believe that former Bush appointees will change their philosophy of prosecution because of the last election?

I think there’s reason to think that what the United States Department of Justice is doing is not consistent with Holder’s stated philosophy of criminal justice.

The coin of the realm for most Bush-era prosecutors is the amount of prison time they can get. And the Bush prosecutors are still bragging about putting people in prison, even though the Attorney General says it shouldn’t be the measure of law enforcement effectiveness, and imprisoning people does not improve public safety.

The Maryland United States Attorney’s Office is a nice example of why Holder’s vision for a smarter instead of harder approach to crime is not being implemented on the front lines.

This month, well after the Attorney General’s speech at the Vera Institute, the U.S. Attorney in Maryland bragged in a press release about a plea agreement for a cocaine distribution case, saying “[b]ecause of the federal mandatory minimum sentence, a drug dealer like Trenell Murphy must serve at least ten years in federal prison with no probation and no parole.” Indeed, take a look at the recent press releases from the Maryland U.S. Attorney’s Office and see how many tout the massive sentences they’re getting.

As John McCain would say, “that’s not change we can believe in.”

The Attorney General “ha[s] asked attorneys throughout the Department to conduct a comprehensive, evidence-based review of federal sentencing and corrections policy.” Perhaps the Attorney General means to suggest that he’s starting a group to study the issue and make recommendations.

People are being sentenced every day in federal court. And they are getting sentences that are longer than they need to be.

As the Attorney General says, these sentences extract a huge social cost. They destroy families and lives. And, they don’t make the public safer.

It’s good for the Attorney General to deliberate, but, as we know too well, all deliberate speed is not all that speedy.