Incarceration, Holder and Congress

Attorney General Eric Holder last week took another pivotal step towards reducing mass incarceration in the United States.  He testified before the U.S. Sentencing Commission in support of a relatively unadvertised proposal that could reduce the federal prison population by 6,550 inmates over the next five years. 

But the Sentencing Commission does not act in a vacuum – they can only propose amendments to Congress for approval. When Congress reviews the Commission’s proposed amendments later this spring, lawmakers should not oppose this one. It will be an easy and meaningful step our often-dysfunctional legislative branch can take towards reducing mass incarceration in America.

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In January, the commission – an agency within the judiciary tasked with creating “guidelines” to help federal judges impose fair and consistent sentences for federal offenders – issued their proposed guideline amendments for the year.  Their star proposal, a response to growing pressures of prison overcrowding in the federal Bureau of Prisons, would change the process judges use to calculate an appropriate sentence for almost 70 percent of drug trafficking offenders in the federal system. Their amendment reduces by two levels the base number used to calculate the recommended range within which judges usually sentence drug trafficking offenders. 

The amendment’s effect on the criminal justice system would be significant: low level, nonviolent drug offenders would receive modestly shorter sentence recommendations.  If implemented, the amendment would result in an 11-month decrease in average drug sentences, from 62 to 54 months.  And while judges can always choose not to follow these sentencing guidelines, the vast majority of them do.  Only two percent of cases involve a judge sentencing an offender above the guideline recommendation. 

Holder supports the Sentencing Commission’s amendment because it is consistent with his “Smart on Crime” initiative.  Since August 2013, Holder has advocated for improving the federal justice system by reserving our most serious punishments for our most serious offenders, an argument that has increasing support across the political spectrum.  Currently, he says, “too many Americans go to prison for too long for no truly good law enforcement reason.” His initiative takes meaningful step towards reducing these numbers by increasing alternatives to incarceration, reducing prosecutors’ use of mandatory sentences for low-level nonviolent offenders, and increasing access to treatment.  This guideline amendment furthers his initiative’s goals.

If Congress does not like the amendment, they can vote to reject it and the guidelines will remain unchanged. Since lengthy drug sentences are a primary driver of the increasing federal prison population, this modest option to help reduce the overcapacity pressures in federal prisons is a wise one.

Eaglin is a counsel at the Brennan Center for Justice.