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Holder Calls for New Approach to Prosecuting Low-Level Drug Crimes

August 12, 2013 at 12:00 AM EDT

JUDY WOODRUFF: The nation’s chief law enforcement officer said today it’s time to scale back tough prison terms for low-level drug crimes. He announced he’s changing the way federal prosecutors go after small-fry offenders.

The United States is home to just five percent of all the people on Earth, but accounts for more than a quarter of the world’s prison population, more than 2.2 million people.

ATTORNEY GENERAL ERIC HOLDER: Too many Americans go to too many prisons for far too long, and for no truly good law enforcement reason.

JUDY WOODRUFF: Today, in San Francisco, the U.S. attorney general said that number must come down. Eric Holder addressed the American Bar Association’s annual meeting.

ERIC HOLDER: Although incarceration has a significant role to play in our justice system, widespread incarceration at the federal, state, and local levels is both ineffective and unsustainable. It imposes a significant economic burden totaling $80 billion in 2010 alone. And it comes with human and moral costs that are impossible to calculate.

As a nation, we are coldly efficient in our incarceration efforts. And with an outsized, unnecessarily large prison population, we need to ensure that incarceration is used to punish, to deter, and to rehabilitate, but not merely to warehouse and to forget.

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JUDY WOODRUFF: One step toward a solution, according to Holder, scale back mandatory minimum sentences for low-level nonviolent drug offenses. There are almost 220,000 prisoners in federal penitentiaries, now, 40 percent over capacity. Nearly half of those inmates are serving time for drug-related crimes.

Holder plans to tell federal prosecutors to change the way they handle those cases.

ERIC HOLDER: They now will be charged with offenses for which the accompanying sentences are better suited to their individual conduct, rather than excessive prison terms more appropriate for violent criminals or drug kingpins.

JUDY WOODRUFF: The attorney general wants states to do likewise, given that 225,000 people are serving time in state prisons for drug crimes.

There is longstanding, bipartisan support for such reform. U.S. Senator Richard Durbin of Illinois has introduced the Smarter Sentencing Act, co-sponsored by fellow Democrat Patrick Leahy of Vermont and Republican Mike Lee of Utah. Kentucky Republican Rand Paul also has a measure to increase judicial discretion.

Durbin wrote the law that ended a longstanding disparity in drug sentencing that hit minorities hardest. The president signed it in 2010.

PRESIDENT BARACK OBAMA: A bipartisan bill to help right a longstanding wrong by narrowing sentencing disparities between those convicted of crack cocaine and powder cocaine. It’s the right thing to do.


JUDY WOODRUFF: Today, Holder also cited the toll such harsh sentences take on some American communities.

ERIC HOLDER: They — and let’s be honest — some of the enforcement priorities that we have set have had a destabilizing effect on particularly — particular communities, largely poor and of color. And applied inappropriately, they are ultimately counterproductive.

JUDY WOODRUFF: Holder added that programs to enable compassionate release for older inmates and to send drug offenders to rehab, not up the river, should help trim prison populations.

To examine the arguments on each side of the issue, we turn to Mary Price. She’s vice president and general counsel of Families Against Mandatory Minimums, an advocacy group. And William Otis, he’s adjunct professor at Georgetown Law School and former special counsel to President George H.W. Bush.

Welcome to you both to the NewsHour.

Mary Price, let me start with you. You think these changes are a good idea. Why?

MARY PRICE, Families Against Mandatory Minimums: Absolutely.

Our criminal justice system has become addicted to solving our social and public safety problems with incarceration. Today, Eric Holder said the department recognizes that and says that we have to step away from using those kinds of policies. We can’t incarcerate our way to public safety, and, nor given the inequities, as we pointed out, should we do that.

So I think, it’s significant. What he’s saying is that, with more flexibility in sentencing, we can be actually safer, and I think that that’s very important and something that we absolutely support.

JUDY WOODRUFF: So, your argument is that it makes — is there less crime, or…

MARY PRICE: Our argument is that we’re locking up too many of the wrong kind of people for too long for the wrong kinds of crimes.

Certainly, I mean, people who we are afraid of, people who are committing serious crimes, they ought to be incarcerated. We need to be kept safe. But, as he pointed out, half of the people that we’re incarcerating are in federal prison for drug crimes, and a significant proportion of them are nonviolent and low-level offenders.

We cannot continue to spend the amount of our — the amount of our criminal justice dollars on locking up people while the Department of Justice goes looking for money for real public safety reforms. 

JUDY WOODRUFF: William Otis, what’s your take on these changes?

WILLIAM OTIS, former Special Counsel to President George H.W. Bush: I think the attorney general is making some mistakes.

Your segment started out by pointing out that he said that our criminal justice system is ineffective and unsustainable. It is very costly. No one doubts that. Any major social program that aims to increase public safety is going to be costly.

The attorney general saying that it’s ineffective I think is just not so and paints a misleading picture of what our criminal justice system has done. It omits the fact that, far from being the failure that he portrayed, our criminal justice system over the last 20 years has reduced the crime rate by 50 percent.

That’s not a picture of a failure. It’s a picture of a success. Now, it’s true that…

JUDY WOODRUFF: And you’re saying that’s largely due to these mandatory minimum sentences?

WILLIAM OTIS: It’s due in significant part to the fact that we are incarcerating more people and incarcerating them for longer.

Now, it’s not due solely to that, of course. There are other measures. Increasing hiring of police, more effective police work, more effective private security measures also contribute to that. But imprisonment has significantly helped bring about this enormous drop in the crime rate.

JUDY WOODRUFF: Mary Price, what about that?

MARY PRICE: But if there were that kind of link, you would think that when mandatory minimums and over-incarceration policies were adopted, that crime would go down and that when they were abandoned that crime would go up.

But, in fact, recently, the Pew Center on the States found that of the 17 states that had reduced their reliance on over-incarceration, their crime rates also didn’t go up. So there’s not such a direct link. And this led conservatives from a group called Right on Crime to say, no, this is not the kind of relationship that we can rely on.

In fact, we can reduce incarceration and keep ourselves safe at the same time by using our criminal justice dollars much, much more wisely.



William Otis, what about one of the other arguments the attorney general made, that the prison population — it wasn’t the only argument, but one of them certainly is that the prison population way, way overcrowded, and that this will be a way to keep — to get minor offenders into alternative programs, where they can be rehabilitated?

WILLIAM OTIS: I think anyone would want criminals to be rehabilitated. And there are programs in prison, particularly in federal prison, that aim to do that because most criminals, after all, will be back on the street at one point or another.

What I think — where I think the attorney general missed the ball was in concentrating on the three-quarters-of-one-percent of the population that is imprisoned, but never mentioning the 99 percent who are not and whose safety has been so significantly improved, again, in part, because of increased incarceration.

I think another problem that the attorney…

JUDY WOODRUFF: Well, let me just pick up on that. So, you’re saying — you’re saying that by focusing just on those who are in prison and not on those who didn’t get caught, in other words?

WILLIAM OTIS: It’s that and it’s more than that.

The people who have not been crime victims on account of the strong measures that we have taken to prevent crime and to bring crime down, those people count, too. That they have not been victims have saved them money, and that’s money that counts in the public fisc is well.

JUDY WOODRUFF: You want to quickly respond?

MARY PRICE: Well, I just — I think that punishment is important in certain cases.

What the attorney general is focusing on are not the — he’s not going to be releasing violent criminals or not charging them appropriately. What he’s saying is, is that we can be smarter about the people that we lock up for lengthy periods of time under mandatory minimum sentences. This is a smart-on-crime move.

He’s the top law enforcement officer in the country. His job on a day-to-day basis is to keep us safe. He wouldn’t be taking these measures if he thought that doing so wouldn’t keep us safe.

JUDY WOODRUFF: One of the other arguments I was reading today is that the — or points, William Otis, is that the attorney general is not changing the law. The laws that requires mandatory minimum sentences are still on the books. The people now in the prison who were sentenced — who received those sentences will remain in prison. These are future offenders.

So will this have much of an effect at all is the question.

WILLIAM OTIS: I think you make a very good point.

The attorney general’s remarks today actually, I think, seem to be more than they are. At present, federal law contains two safety valves that already offer an opportunity for leniency and for offenders to go below mandatory minimums. One of those has some of the criteria the attorney general outlined today. They allow offenders who otherwise would be subject to mandatory minimums to get out of that if they are not violent, if they still…


JUDY WOODRUFF: You’re saying that — I’m sorry. You’re saying that the method is already there or the ability to make these changes is already there?

WILLIAM OTIS: And it’s already there, and, as a matter of fact, it’s frequently used in federal court.

JUDY WOODRUFF: But what about this point about this doesn’t change the law? It’s still on the books.

MARY PRICE: Exactly. It doesn’t change the law.

And the safety valve to which Bill is referring is terrific. I mean, 80,000 people have benefited with shorter sentences over the years. But it’s not enough, clearly. Our prisons are way oversubscribed. We’re operating at 140 percent capacity.

What the attorney general is saying is, Congress, the ball is in your court. He made references to several bipartisan bills that would reduce mandatory minimums or provide larger safety valves to them. And he said, I’m going to take the — we’re going to take the first step. We’re demonstrating what we can do to reduce the reliance on over-incarceration, and we are going to reach out a hand to Congress and we’re going to work with Congress.

JUDY WOODRUFF: We’re going to leave it there for tonight.

Mary Price, William Otis, we thank you both.

WILLIAM OTIS: Thank you.

MARY PRICE: Thank you so much.