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A minimum of reform

Eric Holder's changes to sentencing rules, announced with great fanfare, will do little to change a culture that keeps too many Americans locked up for too long

By Matt Kaiser

7:00 AM EDT, August 25, 2013

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Attorney General Eric Holder announced recently that the United States' practice of locking up so many of its citizens has to stop. News outlets almost uniformly reported that Mr. Holder was drastically limiting the application of mandatory minimum sentences. But when you look at the details of what Mr. Holder's plan is, it's not going to do much of anything to change the alarming rate at which we throw people in federal prison.

As the attorney general said, we have 5 percent of the world's population but 25 percent of the world's prisoners. We lock more people up than they do in China. Unless you think Americans are particularly lawless people, this reflects a serious problem with our criminal justice system.

Mr. Holder announced three proposals to address this problem. None will bring about a meaningful change to the people put in prison by our federal criminal justice system.

First, Mr. Holder issued a memo to federal prosecutors directing that they implement a technical change to how they bring federal charges so that fewer people are subject to draconian mandatory minimums in drug cases.

This is a great idea, but Mr. Holder's proposal doesn't go far enough to affect many people. Congress has already created a law called the "safety valve" that says if you're not a violent person, didn't have a gun, don't have a significant criminal history and are convicted of a drug crime, then you're eligible to a mandatory minimum. That's the law now.

Mr. Holder's new change states that prosecutors shouldn't apply a mandatory minimum sentence in a drug case to a person who is not violent, didn't have a gun, and doesn't have a significant criminal history.

The only difference is that "significant criminal history" is now slightly more relaxed. Under the safety valve law, a person is only eligible if they have no more than one criminal history "point," where one point is equivalent to one conviction with jail time of less than 30 days. (An average DUI gets you one point.)

So, under current law, if you have more than one criminal point, you can avoid the mandatory minimum. Mr. Holder's big change? Now, if you have two criminal history points, you can also avoid the mandatory minimum.

Our prisons are not overflowing because the folks who are being prosecuted have two DUIs instead of one. This change is not going to reduce our shameful record of mass incarceration.

Moreover, this only applies to drug crimes. Mr. Holder is right that the war on drugs has caused a lot of the problem of mass incarceration. But it isn't the only problem. In 2012, for example, we sent almost as many people to prison for immigration crimes as we did for drug crimes, according to the federal sentencing commission.

Second, Mr. Holder proposed changing the Bureau of Prisons' programs around compassionate release — that is, release for people who pose no danger and are either very sick or very old.

Clearly, this is a good thing. It serves no law enforcement purpose to keep harmless people at the end of their lives away from their families. But we're also locking up people in the prime of their lives, too — and for no legitimate law enforcement purpose.

Letting the very old and the very sick out is the right thing to do, but it doesn't fix the problem Mr. Holder is trying to solve.

Moreover, when you look at what Mr. Holder has actually put in place, it's extremely limited. Now, people who are older than 65 and have served at least 10 years or 75 percent of their sentence (whichever is greater) are eligible to start the process to ask for their release. But only if they pose no threat to society.

It's not exactly throwing open the prison gates for these elderly people.

Finally, Mr. Holder proposed creating standards for when state cases are taken into federal court. Many crimes, especially drug distribution, can be prosecuted either in state court or in federal court. Frequently, a federal prosecution would result in a much longer prison sentence than a state prosecution. The decision about whether to take a case federal or state is, in a meaningful way, a decision about whether a person should receive a massive and draconian sentence.

There need to be national standards for how these decisions are made. That's clear. But simply creating those standards won't reduce the prison population by a meaningful amount without more systematic reform of the Department of Justice.

We have, now, an army of federal prosecutors who are working every day to put people in prison. These are smart, competitive and aggressive lawyers who went to excellent law schools and are trying to make a career. My firm was thinking about hiring a former federal prosecutor, and we called the lawyer's supervisor as a reference. We were told that the lawyer was a great lawyer because "he got a number of very substantial sentences."

No one at the Department of Justice wins an award or gets a promotion for deciding to walk away from a case, or advocating for a lower fair sentence instead of a higher one they can brag about in the office. And Mr. Holder's "reforms" do nothing to change that. If federal prosecutors aren't throwing people in prison from state court, they'll find other people to put in prison.

We either need to drastically reform the culture of law enforcement — and reward decisions to walk away as much as decisions to go forward — or we need to drastically reduce the number of people who make a living from other people going to prison.

Matt Kaiser, a Maryland resident and former state public defender, is an adjunct professor of law at Georgetown University and the founding partner of The Kaiser Law Firm. His email is mkaiser@tklf.com.