U.S. Attorney General Eric Holder has directed the Justice Department to institute a slew of major reforms to federal charging policies that have long required automatic prison time for even minor drug offences.

Since 1980, the U.S. federal prison population has grown by almost 800 percent. Credit: Bigstock

“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 – and … to usher in a new approach,” Holder stated in a watershed speech Monday before the American Bar Association.

“And with an outsized, unnecessarily large prison population, we need to ensure that incarceration is used to punish, deter and rehabilitate – not merely to warehouse and forget. Today, a vicious cycle of poverty, criminality and incarceration traps too many Americans and weakens too many communities. And many aspects of our criminal justice system may actually exacerbate these problems, rather than alleviate them.”

Holder announced that “draconian mandatory minimum sentences” would no longer be required for those charged with low-level, nonviolent drug offences with no ties to large-scale gangs.

The “mandatory minimum” policy has been a cornerstone of a decades-long anti-drugs approach that many blame for record levels of incarceration, a massively overstretched prison system, and decimated minority communities. With some 219,000 inmates – a number official researchers earlier this year called “historically unprecedented” – the country currently holds a quarter of the world’s prisoners.

Half of those are locked up on drug-related crimes, with more than 80 percent considered non-violent offenders.

Not only have such numbers created a colossal budgetary drain, but scholars have suggested that this level of incarceration is dangerous for society at large. According to landmark research by the Pew Centre on the States, a research group, higher incarceration rates actually produce more crime by affecting families and vesting people with criminal records.

While the U.S. prison system cost the cash-strapped country some 80 billion dollars in 2010, Holder noted Monday that 40 to 60 percent of inmates are rearrested within three years of their release.

“As a nation, we are coldly efficient in our incarceration efforts,” he stated. “While the entire U.S. population has increased by about a third since 1980, the federal prison population has grown at an astonishing rate – by almost 800 percent. It’s still growing – despite the fact that federal prisons are operating at nearly 40 percent above capacity.”

Tipping point

The decisions announced Monday follow a department-wide review initiated by Holder early this year, aimed at cutting down on inefficiencies, ineffective policies and inequities in the U.S. federal criminal justice system. The reforms will go beyond drug offences, but ultimately aim to bring down the federal prison population.

Holder announced, for instance, that the Justice Department would come up with a new framework for determining when U.S. attorneys should file charges in federal cases – and when they should not. Simultaneously, the agency will mount a series of programmes to focus on alternatives to incarceration.

This spring the department broadened the cases under which inmates could be considered for “compassionate release”, including due to medical problems or age, a move long urged by rights groups.

The department overhaul will also focus on the startling racial disparity in the U.S. penal system. On Monday, Holder said black men are on average receiving prison sentences around 20 percent longer than white men convicted of the same crimes.

A group of U.S. federal attorneys will now be tasked with examining these disparities and offering recommendations on how to mitigate such inequities.

“This is very encouraging – since the beginning of the explosion of the U.S. prison population during the 1970s, I don’t recall any attorney general making such statements in such a high-profile way,” Marc Mauer, executive director of the Sentencing Project and a longstanding expert on the U.S. criminal justice system, told IPS.

“Of course, most of these suggestions have been widely discussed in recent years. But to have the attorney general of the United States say that we incarcerate too many people, that we’re having a disproportionate impact on minority communities, and that we need to shift our direction – if nothing else, this will have an important symbolic effect in opening up the political dialogue.”

Indeed, the political dynamic around the United States’ over-incarceration and increased reliance on the federal rather than state criminal justice system is today surprisingly united in favour of reform. Holder says the administration is keen to work with Congress to put in place farther-reaching legislation.

Two such bipartisan bills were recently introduced in the U.S. Senate (here and here), both of which share many of Holder’s core aims. Although Congress is currently in a five-week recess, several lawmakers from across the ideological spectrum released statements Monday in support of the attorney general’s speech.

In addition, in mid-June a bipartisan committee in the House of Representatives began combing through the U.S. federal penal code, looking to cull statutes that are seen as overlapping, ineffective or otherwise unnecessary. The effort, the first such undertaking in two decades, is expected to result in recommendations by the end of the year.

Holder is also a key ally of President Barack Obama. Several times during his speech Monday, the attorney general noted that the new reforms have come about in part from extensive discussions with Obama.

“This is clearly the moment for change – it’s long overdue, but we seem to be at a tipping point here,” Mary Price, vice-president and general counsel of Families Against Mandatory Minimums (FAMM), an advocacy group, told IPS.

“There are so many voices being raised on this issue right now, by both the usual suspects and some very prominent conservatives. They’ve looked at the experiences of the states, which have been experiencing crushing budget problems and seeing remarkable success in changing their own sentencing requirements.”

The changes will depend in part on shifting greater responsibility for responding to nonviolent crimes onto local communities and state courts, while also vesting greater powers in judges to determine case-specific punishment. Price says state governments have already been acting as “Petri dishes” for the federal government, undertaking innovative experiments in how to wean their criminal justice systems off of incarceration and redirect them towards alternatives.

“It is towards these alternatives that the federal government, too, clearly wants to head,” Price notes. “We can’t just incarcerate our way out of social problems, and in this the states have been leading the way. So we can now expect a new emphasis on developing both alternatives and the mechanisms under which people can be sentenced to them.”

The United States has the highest incarceration rate in the world, locking up about 750 people per 100,000 residents. Credit: Bigstock

By Carey L. Biron
WASHINGTON, Jun 14 2013 (IPS)

A Congressional task force started work Friday to review the massive U.S. federal penal code and cull statutes deemed to be overlapping, ineffective or otherwise unnecessary.

The bipartisan House Committee on the Judiciary Over-Criminalisation Task Force will also come up with recommendations for broader reforms of the criminal justice system, the first time such reforms have been discussed in two decades.

In recent years, some efforts to look at ways to tame the penal code and rein in the country’s record-high prison population have been scuppered by political wrangling.

Nonetheless, the task for has received broad support from across the political spectrum, uniting conservatives afraid of government overreach and liberals concerned with the criminalisation of minor offenses and “prison state” tactics.

“The Judiciary Committee is one of the most partisan committees in the Congress, so conservatives and progressives agreeing that it is timely and important to take a look at the criminal justice system – this is a tremendous opportunity,” Jennifer Bellamy, legislative counsel with the Washington legislative office of the American Civil Liberties Union (ACLU), an advocacy group, told IPS.

“This is also the first time that we’ve had this type of re-examination since the 1980s, so it’s a pretty huge undertaking.”

In introductory remarks on Friday, task force members noted that recent decades have seen Congress massively expand the number of federal offences.

“Federal offences increased by about 30 percent between 1980 and 2004, so that we’ve averaged almost one new crime a week over the past few decades,” Representative Bobby Scott said Friday.

“In the 4,500 provisions of the federal criminal code, there are an estimated 300,000 or more federal regulations that can be enforced with criminal penalties. But far too many of these criminal offenscs and regulations lack the adequate criminal intent…requirement to protect the innocent.”

The lack of adequate “intent” requirements for many statutes is blamed for allowing for the criminalisation of innocent people or those who unknowingly break certain laws. Other laws are seen as overly broad, particularly given the relatively recent rise in crimes that carry mandatory minimum punishments."An individual's fate often hinges on not the actual offence but the authority that prosecutes them."
-- Bobby Scott

“The bottom line is that an individual’s fate often hinges on not the actual offence but the authority that prosecutes them…including car-jacking and drug offenses,” Scott continued. “An unforeseen consequence of this over-criminalisation and over-federalisation has been over-incarceration, with an explosion in the U.S. prison population.”

The number of federal prisoners in the United States has increased by almost 800 percent over the past three decades, to almost 220,000 today. According to a February report by the Congressional Research Service, the Congress’s main research wing, that build-up is “historically unprecedented”.

It also means that the United States today has both the largest number of people in prison and the highest rate of incarceration of any country – locking up some 750 people per 100,000 residents, seven times the international average, and inordinately affecting minorities.

Not only have those numbers created a massive budgetary drain, but scholars have suggested that this level of incarceration is dangerous for society at large. According to landmark research by the Pew Centre on the States, a research group, any incarceration rate over 500 per 100,000 actually produces more crime by affecting families and vesting people with criminal records.

Meanwhile, states are locking up African-Americans at an average rate of 2,200 per 100,000. According to a major report on racism that the U.S. State Department sent to the United Nations on Thursday, African-American men remain 6.4 times more likely to be incarcerated than white men.

State models

A significant amount of the work – and potential – for the new task force will simply be in disentangling federal from state statutes. On a broader level, advocates are hoping that the process will result in an effort to redefine the role of the federal government in prosecuting criminal activity.

“The states have historically had responsibility for prosecutions, and it’s only fairly recently that the federal government has become increasingly involved,” the ACLU’s Bellamy said.

“It’s quite difficult politically for policymakers to step back and admit that an issue is already being adequately handled at the state level. But this process is now an opportunity to do that.”

States in recent years have become cauldrons of innovative – and bipartisan – thinking on criminal justice-related reforms. Motivated to a great extent by the fiscal challenges that have cropped up since the economic downturn, state governments have been increasingly tackling policies that have led to high levels of incarceration.

Juvenile detention and drugs sentencing have constituted two particular focuses, and the latter could now form a central part of the task force conversation. Federal drug policy is widely acknowledged as a leading driver for the current high incarceration rates, accounting for roughly half of the federal prisons population.

The last Congressional attempt to address over-criminalisation, in 2011, failed because conservatives worried that it could lead to lighter punishments for marijuana-related offences. Yet some advocates suggest drugs law could today provide fruitful middle ground.

“In recent years, we have seen the left and right coming together to critique excessive federal intervention in the drug war and the often wasteful and unnecessary incarceration,” Marc Mauer, executive director of the Sentencing Project, an advocacy group, told IPS.

“So there should be a lot of potential for common ground around drug policy and mandatory sentencing. Either way, it is a very intriguing development that we have bipartisan interest around these issues, though it remains to be seen what set of issues receives priority.”

The task force is expected to hold open meetings for the next six months, aimed at coming up with a final set of reforms recommendations that would then move through Congress as a normal law.

For the moment, however, some critics note that Congressional lawmaking is proceeding as normal.

“Less than 24 hours before this morning’s… hearing, the House Judiciary Committee heard testimony on a new immigration bill that expands the federal criminal code, creates a crime without including an intent requirement, and establishes new and expands existing mandatory minimum sentencing provisions,” Julie Stewart, president of Families Against Mandatory Minimums, an advocacy group, said Friday.

“If House Judiciary Committee leaders think we have too many federal crime laws, and that these laws are vague and duplicative, then they should stop passing them. They really don’t need expert witnesses to find the cause of over-criminalisation. They need a mirror.”