Holder’s Proposals on Mandatory Minimums and Indigent Defense a Step in the Right Direction
Virginia E. Sloan, President

On August 12, U.S. Attorney General Eric Holder announced a package of criminal justice reforms in a speech at the American Bar Association convention in San Francisco.  In his much-praised remarks, Holder acknowledged that our criminal justice system is, “in too many respects broken.” Among the issues Holder raised in his speech were the unjust and costly impact of drug-related federal mandatory minimums and the crisis in indigent defense, particularly in the federal public defender program.

Holder introduced what the Department of Justice (DOJ) is calling the “Smart on Crime” initiative.  In announcing the initiative, Holder expressed concern that some mandatory minimums result in unfairly long sentences that fail to increase public safety and are “ultimately counterproductive.” As a result, the DOJ will refrain from charging low-level, non-violent drug offender with offenses that carry mandatory minimums, reserving mandatory minimums “for serious, high-level, or violent drug traffickers.”

This is clearly a step in the right direction.  The number of federal inmates has grown tenfold since 1980 and now surpasses 218,000.  The Urban Institute says that drug offenders make up about half of the end-of-year population in federal prison, and that the length of their sentences is an important driver of population growth.  The Federal Bureau of Prisons gobbles up an increasingly large share of the DOJ budget, money that could better be spent on education and treatment programs for low-level, nonviolent offenders.

But changing the charging policy for drug offenders, while laudatory, is not enough.  A letter from more than 50 former federal prosecutors and judges, organized by The Constitution Project and sent last month to Senator Patrick Leahy (D-VT) and Senator Rand Paul (R-KY) in support of the “Justice Safety Valve Act of 2013,” noted that Holder has previously observed that “too many Americans go to too many prisons for far too long, and for no truly good law enforcement reason.”  The “Justice Safety Valve Act” would provide judges greater discretion to sentence defendants below the mandatory minimum.  TCP has also expressed support for a second sentencing reform bill, the “Smarter Sentencing Act of 2013,” introduced by Senator Dick Durbin (D-IL) and Senator Mike Lee (R-UT). Holder called these bills “promising legislation” that “will ultimately save our country billions of dollars while keeping us safe.”

The speech also included a call to fulfill  the government obligation to provide counsel for those accused of crime who are unable to afford one on their own.  As Holder stated, “Congress must not only end the forced budget cuts that have decimated public defenders nationwide – they must expand existing indigent defense programs, provide access to counsel for more juvenile defendants, and increase funding for federal public defender offices.”  Already sequestration is forcing federal public defenders to furlough or layoff staff, and causing federal courts to delay trials.  This problem becomes much worse if the effects of sequestration are extended into the next fiscal year. Earlier this summer, TCP submitted a statement from former federal prosecutors and judges urging Congress to prevent devastating budget cuts to the federal defender services.  TCP welcomes the Attorney General’s commitment to help head off this impending crisis.

These statements of support from the Attorney General are indeed a step in the right direction and we welcome them.  But congressional action is also necessary to expand on DOJ’s commitment to reducing the impact of federal mandatory minimums and to address the crisis that threatens the foundation of our federal public defender program. TCP looks forward to working with the Obama administration and the Congress to implement these vital criminal justice system reforms.

The views expressed in this blog post are not necessarily those of TCP, its committees, or boards. 

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