Justice Dept. moves to cut down on minimum sentencing

Important move will attenuate War on Drugs while wresting undue power from prosecutors' hands

By Natasha Lennard
Published August 12, 2013 1:18PM (EDT)

Attorney General Eric Holder announced Monday that the Department of Justice (DOJ) aimed to overhaul federal minimum sentencing laws, particularly to help those facing low-level drug charges from facing prosecution and lengthy minimum jail-time.

During an American Bar Association speech Monday, Holder plans to say: "Today, a vicious cycle of poverty, criminality, and incarceration traps too many Americans and weakens too many communities... However, many aspects of our criminal justice system may actually exacerbate this problem, rather than alleviate it."

The New York Times noted on Holder's prepared remarks that he plans to detail the extent of the over-incarcertion rate and its roots in the War on Drugs. The A.G. will comment that while the American population has grown by about a third since 1980, its prison rate has increased nearly 800 percent. At the federal level, more than 219,000 inmates are currently behind bars — nearly half for drug-related crimes — and the prisons are operating at nearly 40 percent above their official capacity.

Human rights advocates will celebrate the DOJ's decision as a possible move to attenuate the U.S.'s vast over-incarceration problem. I've written for some months too -- particularly in light of Aaron Swartz's suicide facing a hefty minimum sentence at trial -- about the undue leverage given to government prosecutors in a judicial system based around minimum sentencing. With the threat of hefty minimum sentences at trial, prosecutors are able to extract from defendants a disproportionate number of guilty pleas before trial (marking millions of Americans with criminal records.)

As Angela Davis, American University law professor wrote last year, “When one considers the fact that more than 95 percent of all criminal cases are resolved with guilty pleas, it is very clear that prosecutors control the criminal justice system through their charging and plea bargaining powers." Holder's comments may always spell an end to the federal crackdown of drug dispensaries where the sale of marijuana has been legalized -- a federal vs. state battle that has seen dispensary owners, following their state law, facing federal charges carrying decade-long minimum sentences.

“Too many Americans go to too many prisons for far too long and for no good law enforcement reason,” Holder will note according to released prepared remarks. Facing a wealth of criticism over the DOJ's treatment of leakers and scant regard, it seems, for the Fourth Estate or Fourth Amendment, the policy shift announced Monday could be a significant silver lining on Holder's otherwise stormy legacy.

Natasha Lennard

Natasha Lennard is an assistant news editor at Salon, covering non-electoral politics, general news and rabble-rousing. Follow her on Twitter @natashalennard, email nlennard@salon.com.

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