HOLDER REVEALS FED. SENTENCING REFORMS AND OTHER CHANGES AIMED AT REDUCING THE PRISON POP.
Monday morning Attorney General Eric Holder unveiled a much-anticipated criminal justice reform package to the American Bar Association. Among many important changes, Holder announced that federal prosecutors would be instructed to stop seeking often-excessive mandatory minimum sentences for low-level, non-violent drug offenders with no gang-ties.
(The entirety of Holder’s speech can be viewed here or read here.)
San Jose Mercury’s Josh Richman and Thomas Peele have the story. Here are a few clips:
In a speech at the American Bar Association’s annual meeting, Holder said the Justice Department would promote drug-treatment and community-service programs as alternatives to prison for many low-level offenders who for years have been caught up in the same strict federal sentencing laws aimed at gang members and drug kingpins.
“By reserving the most severe penalties for serious, high-level or violent drug traffickers, we can better promote public safety, deterrence and rehabilitation, while making our expenditures smarter and more productive,” Holder said.
The new strategy would only apply in the federal justice system — where 47 percent of prisoners are being held on drug convictions — but drug policy experts said the symbolism is far-reaching. As Holder pointed out, states across the country, including Texas and California, have re-examined drug enforcement and tough sentencing standards to thin out bulging prison populations.
Holder can make some policy changes, but a number of these reforms will require legislation to bring about real change.
Many drug offenses violate both federal and state law, leaving federal and state prosecutors to work out their own policies about who’ll prosecute which cases; the Justice Department typically has had little or no role in pursuing those accused of simple possession or even small possession-for-sale cases.
Drug-policy reform advocates have been calling for Congress to eliminate mandatory minimum sentencing laws for years, but said Holder’s move was a good first step.
While most people praised Holder’s news, Slate’s Emily Bazelon said that the reforms aren’t enough. Here’s why:
Holder’s policy is not a new law: He’s the boss, so the U.S. attorneys around the country are supposed to do what he says, but if they don’t, they’re not lawbreakers.
The experts I consulted said that the attorney general is merely centralizing the decision-making that already occurs. There’s a recent precedent: In 2003, under President George W. Bush, former Attorney General John Ashcroft directed all federal prosecutors to charge the “most serious, readily provable offense” available. In other words, Ashcroft too recognized that prosecutors have choices at charging, and he told them to go with the biggest crime they can make stick without too much trouble. Then as now, the idea is to rein in disparities, so that like offenders receive like sentences. (Though the research showing that black men do more time than other defendants who commit the same crimes suggests that it hasn’t quite worked out that way.) The difference between Holder and Ashcroft is that he’s moving the needle of prosecutorial discretion in the direction of mercy rather than stiffer punishment.
I’m left with a different question about Holder’s announcement: How big a shift does it actually represent? Let’s go back to his description of the kind of defendants who may now escape an automatic mandatory minimum: nonviolent drug offenders without ties to big gangs or cartels. According to the Times article previewing the speech, a DoJ memo being sent to all U.S. attorney offices decrees that the defendants they’re supposed to save from mandatory minimums must have no “significant criminal history.” That phrase has a particular meaning in federal sentencing law, and it’s not reassuring. If you have a marijuana possession in your past, or you got caught jumping a turnstile a couple of times, you have a significant criminal history. In other words, it doesn’t take much. Also, how many drug offenders really have no ties at all to big gangs or cartels, since they all have to get their product from somewhere?
JUDGE SEZ NYPD’S CONTROVERSIAL “STOP-AND-FRISK” TACTICS ARE UNCONSTITUTIONAL
U.S. District Judge Shira Scheindlin ruled Monday that NYC’s stop-and-frisk practice is racially discriminatory, unfairly targeting blacks and Hispanics, and appointed an independent monitor to make sure changes are implemented. Mayor Bloomberg said that he will appeal the ruling.
The Associated Press has the story. Here are some clips:
“The city’s highest officials have turned a blind eye to the evidence that officers are conducting stops in a racially discriminatory manner,” U.S. District Judge Shira Scheindlin wrote in her ruling. “In their zeal to defend a policy that they believe to be effective, they have willfully ignored overwhelming proof that the policy of targeting ‘the right people’ is racially discriminatory.”
Stop-and-frisk has been around for decades in some form, but recorded stops increased dramatically under the Bloomberg administration to an all-time high in 2011 of 684,330, mostly of black and Hispanic men. The lawsuit was filed in 2004 by four men, all minorities, and became a class-action case.
About half the people who are stopped are subject only to questioning. Others have their bag or backpack searched, and sometimes police conduct a full pat-down. Only 10 percent of all stops result in arrest, and a weapon is recovered a small fraction of the time.
Scheindlin noted she was not putting an end to the practice, which is constitutional, but was reforming the way the NYPD implemented its stops.
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Scheindlin did not give many specifics for how to correct such practices but instead directed the monitor to develop reforms to policies, training, supervision and discipline with input from the communities most affected. She also ordered a pilot program in which officers test body-worn cameras in the one precinct per borough where most stops occurred. The idea came up inadvertently during testimony, but Scheindlin seized on it as a way to provide objective records of the encounters.
(The NY Times’ Joseph Goldstein also has good coverage of the ruling.)
A WIN FOR CALIFORNIA TRANSGENDER YOUTH
Gov. Jerry Brown signed a bill Monday allowing transgender students across California to participate in sports and use facilities based on their gender identity, not the gender listed on their school records.
SF Gate’s Ellen Huet has the story. Here’s a clip:
AB 1266 would ensure that schools respect students’ gender identity with respect to sports teams, locker rooms, restrooms and all other programs and facilities. The bill, signed by Gov. Jerry Brown on Monday, was introduced by state Assemblyman Tom Ammiano (D-San Francisco).
State law already prohibits discrimination in schools on the basis of gender identity, but backers of the measure say the extra clarity in the law will go a long way in making a growing population of transgender students feel comfortable and safe at school.
“Being accepted or not accepted at school makes all the difference in the world for these kids,” said Shannon Minter, the legal director for the National Center for Lesbian Rights, a San Francisco organization that sponsored the bill. “That’s in terms of both their abilities to succeed in school in the short term and their long-term health and well-being.”
The law will go into effect on Jan. 1, 2014.