Holder announced yesterday that the administration will scale back mandatory minimum sentences for non-violent drug offenders:
Kleiman supports the change:
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.
The most important change in the last 20 years is that crime has fallen so dramatically (see here for instance), and in response we’ve seen a real cultural shift. I’m sure there are still politicians who’d love to tar their opponents as soft on crime. But they know it probably wouldn’t work. And that means there’s at least a chance we can make real policy change.
Ilya Somin wants more details on Holder’s new policy:
The key question, it seems to me, is whether the exceptions for defendants who have “significant ties to large-scale gangs or cartels” and those who have a “significant criminal history” are likely to swallow the new rule. How close do ties to a gang or cartel have to be before they qualify as “significant”? Do previous convictions for drug trafficking count as a “significant” criminal history?
How much evidence is enough to conclude that the defendant really does have ties to a gang; is a preponderance of evidence or proof beyond a reasonable doubt required, or is circumstantial evidence going to be enough? In many inner city neighborhoods, a high proportion of all drug offenders probably have at least some ties to gangs or cartels. The nature of illegal markets makes it dangerous and difficult to function within them without such connections.
Jacob Sullum also focuses the new policy’s loopholes:
The practical impact of this change will depend on details such as what Holder means by “no ties to large-scale organizations, gangs, or cartels.” Many marijuana dealers and pretty much all cocaine and heroin dealers arguably would fail that test. According to a memo that Holder sent to U.S. attorneys today, another requirement is “no significant criminal history.” The memo adds that “a significant criminal history will normally be evidenced by three or more criminal history points but may involve fewer or greater depending on the nature of any prior convictions.” In practice, a “significant” criminal history can be quite minor: An offense for which a defendant received a 60-day sentence, for instance, counts as two points, so a New Yorker who is caught with more than seven rounds in his gun after getting busted for “public display” of marijuana may be ineligible for Holder’s mercy.
Plumer breaks down the economic reasons why the DOJ would start liberalizing drug policy:
The rapid growth in federal prisons was putting a serious strain on the Justice Department’s budget. The number of federal inmates has quadrupled since 1980 and now surpasses 218,000. Housing all those prisoners isn’t cheap: The average minimum-security inmate now costs $21,000 a year, while the average high-security inmate costs $33,000 a year.
Add it all up, and the Obama administration had to request $6.9 billion for the Bureau of Prisons in fiscal 2013. That may not sound like much in the context of trillion-dollar deficits. But a recent report (pdf) from the Urban Institute pointed out that if the current rate of incarceration continues, federal prisons will keep taking up a bigger and bigger chunk of the Department of Justice’s budget — rising to 30 percent by 2020 …
Dylan Matthews points out that the new policy will only make a small dent in the prison population:
[T]he federal system isn’t really where the action is. The most recent Bureau of Justice Statistics (BJS) estimates find that there are 1,353,198 people incarcerated at the state level and 217,815 incarcerated federally. So about 13.9 percent of U.S. prisoners are in federal institutions; the other 86.1 percent are in state facilities. And most prisoners at the state level are not there for drug crimes.
And Keith Humphreys suggests another policy change that would further reduce the prison population:
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.