By Joseph Tanfani and Carrie Wells, Tribune Newspapers
11:12 PM EDT, August 12, 2013
— In a sign of growing disenchantment with the war on drugs, conservatives joined Democrats and reform advocates Monday in praising Attorney General Eric H. Holder Jr.'s declaration that it was time to rethink get-tough policies that have tied the hands of judges and swollen the populations of federal prisons.
The nation's top law enforcement officer, decrying the "moral and human costs" of mass incarceration, said he would instruct federal prosecutors to change the way they charge some drug offenders to avoid triggering "mandatory minimum" sentencing laws that have significantly boosted sentences.
The federal prison population has exploded, even as populations in state prisons have declined steadily.
"The course we are on is far from sustainable," Holder said, speaking to the American Bar Association in San Francisco. "As the so-called 'war on drugs' enters its fifth decade, we need to ask whether it, and the approaches that comprise it, have been truly effective."
Holder also said the department would increase efforts to find alternatives to incarceration and to smooth the compassionate release of severely ill prisoners who are no longer a threat to the public.
Some former prosecutors said the changes probably won't affect huge numbers of cases. But advocates for drug policy reform said Holder's statements were long overdue and could reframe the debate about sentencing policy.
It's not yet clear what effect the changes to mandatory minimum sentencing will have in Maryland. Baltimore State's Attorney Gregg L. Bernstein and Baltimore County State's Attorney Scott D. Shellenberger both noted that in Maryland, federal authorities typically pursue cases involving large and violent drug rings.
Bernstein said that in Maryland, prosecutors can try to pursue mandatory minimum sentences under state law but that his office only does so if the defendant has a history of violence or is facing charges of violence. The mandatory minimum sentences allowed under state law call for 10 years in prison if a defendant has one prior felony drug conviction, 25 years for two prior felony drug convictions and 40 years for three prior felony drug convictions.
Still, Bernstein said Holder's announcement reflects shifts in attitudes in how to best address drug offenses.
"The United States has one of the highest incarceration rates in the world, which is primarily the result of the so-called War on Drugs," Bernstein said. "I think people are starting to look at this and ask whether there's a better way to deal with these kind of offenses."
U.S. Attorney for Maryland Rod J. Rosenstein declined through a spokeswoman to comment.
Holder is essentially following the lead of states such as Georgia, Texas and Ohio, which have reformed sentencing rules, given judges more discretion and steered some offenders into treatment. State prison populations have dropped since 2009, according to Justice Department statistics.
Not so in the federal system. There are now about 218,950 inmates, an 800 percent increase since 1980. Nearly 47 percent are drug offenders, and prison costs now account for about a third of the Justice Department's budget.
Those spiraling costs have helped convince conservatives to embrace sentencing reform. In March, Sen. Rand Paul, a Kentucky Republican, joined with Senate Judiciary Chairman Patrick Leahy, a Vermont Democrat, to introduce legislation to expand judges' discretion in federal criminal cases. Sens. Dick Durbin, an Illinois Democrat, and Mike Lee, a Utah Republican, have introduced another bill that would ease mandatory sentencing rules.
"I am encouraged that the president and attorney general agree with me that mandatory minimum sentences for nonviolent offenders promote injustice and do not serve public safety," Paul said in a statement.
The mandatory sentencing policies once had broad support in Congress. In the wake of the cocaine overdose death of University of Maryland basketball star Len Bias in 1986, Democrats and Republicans rushed to outdo each other to support a law that tied the hands of judges and forced harsh mandatory sentences on drug dealers.
Many federal judges have chafed at the restrictions. In an opinion last year, U.S. District Judge John Gleeson said he was forced to impose a five-year sentence on a street-level dealer. "It was not a just sentence," he wrote, calling on Holder to change the charging guidelines to target drug kingpins, as Congress intended.
"It has been that way for a generation — get tough as though it works, but it hasn't worked," said Craig DeRoche, a former Republican speaker in the Michigan House and president of Justice Fellowship, a conservative group that advocates sentencing reform.
There were some voices of opposition. House Judiciary Committee Chairman Bob Goodlatte, a Virginia Republican, said sentencing reform was a good idea, but Holder should be working with Congress rather than "selectively enforcing our laws" and overstepping the executive's constitutional power.
Holder's policy change instructs U.S. attorneys how to write up certain kinds of drug cases, involving low-level offenders without a weapon. In those cases, Holder told prosecutors not to include the amount of drugs on charging documents, if those amounts would trigger the mandatory guidelines.
Frederick H. Bealefeld III, former Baltimore police commissioner who retired last year, said he is glad Holder worked in some caveats so the planned policy changes don't affect people with ties to gangs.
"I think it has an enormous amount of traction and appeal but I was glad to see that he prefaced that by saying that he wasn't talking about violent offenders and people who had affiliations with criminal organizations or violent gangs."
In cities such as "Detroit and Baltimore where witness intimidation is very much a real and ongoing issue," Bealefeld said, some suspects in shootings, robberies and other violent crimes walk free when witnesses recant their testimony in court or decide not to testify.
In those cases, Bealefeld said, drug charges offer police a way to lock up violent offenders, drug kingpins and gang members and get them off the streets for several years.
"We shouldn't hamper law enforcement's ability to use a tool — and that is the drug laws of this country — to hold violent criminals accountable," Bealefeld said.
Meanwhile some advocates said they saw the announcement as a good step but wanted Holder to go further.
"This is a cautious step, this isn't a sweeping change," said Sonia Kumar, an attorney for the Maryland chapter of the American Civil Liberties Union. "From our perspective this is really in part a signal of more changes to come, a first step of what hopefully is many."
Neill Franklin, head of the group Law Enforcement Against Prohibition and a former narcotics officer with the Maryland State Police and the Baltimore Police Department, called for a further overhaul of the way drug offenses are handled at every level, including non-federal cases.
"If you're serious… you've got to end the underground market of drug selling," Franklin said. "That's why gangs survive. You need to move drug policies to a health-centered place."
Baltimore Sun reporter Justin George and Tribune staff writer Christi Parsons contributed to this article.
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