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8/19/2013, "Remarks by Attorney General Holder"

On August 12, 2013, the United States Attorney General, Eric Holder, appeared before the American Bar Association and made a speech. That speech will have lasting effects on federal sentencing, and the arguments made by the defense attorneys, for the foreseeable future. In his speech, Attorney Holder stated that, in this country, we have an outsized and unnecessarily large prison population. We should be focused on using incarceration to punish, deter, and rehabilitate, but what we are doing is merely warehousing and forgetting. We should be not only be focused on punishment of offenders and protecting society from those offenders, but we should also be focused on deterring future crime and helping those offenders to avoid committing any crimes again once released. At the present time, we are not doing too well in that department. Attorney Holder stated that nine to ten million people cycle through the jails and prisons in America every year. He went on to state that "roughly 40% of former federal prisoners and more than 60% of former state prisoners are rearrested or have their supervision revoked within three years of their release." Even though the United States makes up about 5% of the world's population, we house almost a quarter of the world's prisoners. Furthermore, of the more 219,000 federal prison inmates at this time, almost half of them are serving time for drug-related crimes.

Attorney Holder called upon the U.S. Attorneys and the federal prosecutors to better allocate resources. He stated that there was no need for federal prosecutors to bring every case that it can because some things are better handled at the state or local level. He called upon the prosecutors to target the most serious offenses and prosecute the most dangerous criminals. He also asked the U.S. Attorneys to examine sentencing disparities among various ethnic minorities and develop recommendations on how to address those disparities. Attorney Holder stated that the first way to do that is to rethink the notion of mandatory minimum sentences for drug-related crimes. He stated that he is mandating "a modification of the Justice Department's charging policies so that certain low-level, nonviolent drug offenders who have no ties to large-scale organizations, gangs, or cartels will no longer be charged with offenses that impose draconian mandatory minimum sentences." Eliminating these mandatory minimum sentences for these low-level offenders will give judges more discretion in sentencing and hopefully have an impact on the reduction in recidivism rates.

Attorney Holder stated that no fewer than 17 states have directed funding away from prison construction and toward evidence-based programs and services, like treatment and supervision, which are designed to reduce recidivism. These states are aiming their programs to help offenders, rather than merely punish, and, in turn, these states have seen a drop in recidivistic crime and a drop in their prison population. Attorney Holder concluded by stating that the "bottom line is that, while the aggressive enforcement of federal criminal statutes remains necessary, we cannot simply prosecute or incarcerate our way to becoming a safer nation. To be effective, federal efforts must also focus on prevention and reentry."

This is something I never thought I would say, but I actually agree with Attorney General Eric Holder. I have seen too many people sentenced for drug crimes in the federal system. Most of the time, these individuals are facing extremely high sentences, and many of my former clients have a very minimal, if not non-existent, criminal past. When faced with such a large number of months behind bars, there are very many defendants who become cooperators. These individuals will turn on their friends and testify against them because it is one of only two ways to receive a sentence under the mandatory minimum.

Some defendants cannot or will not become cooperators, and this leads to very high sentences. I am reminded of two former clients. The first was a man of Vietnamese decent who had learned, through the years, how to grow and maintain marijuana plants. He was hired by someone to maintain a grow house, and when federal authorities entered with a search warrant, they found more than 150 plants in the home. Because there were so many plants, regardless of how much each plant weighed, this imposed the mandatory minimum time of five years' incarceration. My second client was a black man who was a drug dealer, I will call Robert. Robert was on his own since he was 15 years old, and selling drugs was the only thing that he could do to make a steady income. Robert understood that he was caught and wished to plead guilty right away, but he did not want to "snitch" on his friends. So, he readily admitted his own involvement, told the authorities what they wanted to know about him personally, and pleaded guilty. The problem was that when Robert was 17, he was arrested on two separate occasions, about a month apart, for sale of narcotics. He pleaded guilty to the two crimes and received a combined sentence. These two prior crimes made Robert a "career offender" in the federal system. Thus, although Robert's federal crime had a mandatory minimum of ten years' incarceration, he was actually given twenty years' incarceration for his crime because he had been arrested twice before for the same crime.

These two former clients embody the draconian nature of the sentencing of federal drug crimes. But, Attorney Holder is now acknowledging that, in some cases, these laws will be too stringent. Attorney Holder, as a representative of the administration, is finally saying that we should be concerned with punishing those that need it, but we should also be concerned with rehabilitating those low-level, nonviolent offenders who can be helped. In the cases that I discuss above, my Vietnamese client would never have been sentenced to five years for simply maintaining the plants to grow marijuana. It was not his money that put the house together or bought the supplies. He was paid a salary for maintaining the plants. Although he deserved some time for his crime, 60 months incarceration was too much. With the money the government is trying to save and the financial crisis that we are in, the money to incarcerate that individual could better be spent somewhere else. Finally, the administration sees that. Each case should be examined on an individual basis. And when the authorities are faced with a low level, non-violent offender who has no ties to gangs or weapons, there is no reason that person should have to face the same mandatory minimum sentences.

It will be interesting to see how these policies are implemented in the weeks and months to come. But, I am happy this issue is on the radar of the administration, and I will enjoy making these arguments at my upcoming federal sentencing hearings. The punishment should fit the crime, and we should all be concerned with lowering recidivism rates and saving our scarce resources for those who actually need and deserve it. Attorney Holder's remarks and initiatives are a good first step.

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