Attorney General Eric Holder's speech today on mandatory-minimum sentencing for drug offenders is far more important for its symbolism than its substance. Here's why:
In the context of the 40-year federal War on Drugs, this speech from the nation's top law enforcement official was nothing less than radical. Holder argued that "too many Americans go to too many prisons for far too long and for no good law enforcement reason," adding: "We cannot simply prosecute or incarcerate our way to becoming a safer nation."
Holder also decried the imposition of "draconian mandatory minimum sentences" on nonviolent, low-level drug offenders who he said were too often subject to "prison terms more appropriate for violent criminals."
We are not used to hearing U.S. Attorneys General talk this way. And to the extent that state and local law enforcement look to Washington for leadership on the prosecution of the drug war, this is a big deal. Neera Tanden, the president of the Center for American Progress, tells Rolling Stone that Holder's speech "sends a big signal to big-city DA's," and that his leadership could "push more blue states" to consider sentencing reform – "which would be all to the good."
The headline change in federal policy that Holder announced to address the over-incarceration fueled by the Drug War is marginal at best. Holder said he'd direct U.S. Attorneys to use their discretion when charging nonviolent, low-level drug criminals who are not tied to cartels, gangs or other large-scale drug operations – asking that these individuals not be prosecuted for crimes that carry mandatory minimum sentences, but for lesser offenses that give judges and juries more discretion matching the punishment to the crime.
On the face of it, this sounds like a sweeping reform. But its actual impact on the problem of over-incarceration is likely to be minimal. The reality is that the federal government is only a mid-sized player in America's world-leading incarceration game. There are more than two million people behind bars in this country. But only about 10 percent of those prisoners can be found in a federal lockup – and just 89,909 of those are there for drug offenses.
The policy change is unlikely to impact those charged with marijuana crimes; low-level busts of fewer than 100 plants generally don't rise to the level of a federal charge. It could have some impact on those charged for crack-cocaine crimes – where defendants of color are disproportionately referred to the feds for prosecution. But even reflecting the past hysteria of the "crack epidemic," there are only about 30,000 Americans in federal prisons for rock cocaine offenses. In short, we're talking about a policy change that might affect a few hundred, perhaps a few thousand prosecutions a year – the Justice Department declined to even provide an estimate.
It's not nothing, but it's also not much.
Neill Franklin, the executive director of Law Enforcement Against Prohibition, captured the mixed emotions of drug reformers today. "For years, our elected leaders tried to outdo one another in looking 'tough on crime' by proposing more and more severe – and unreasonable – mandatory sentences for drug crimes," he said. "This is a good step in the right direction to reduce overcrowding prisons, but does little to reduce the harms of the war on drugs generally."