In a series of announcements last month, Attorney General Eric Holder proposed a number of sweeping changes to the Federal Government’s federal crimes sentencing practices and policies that could result in real and significant reforms to a bloated system that incarcerates “too many Americans . . . for far too long, and for no good law enforcement reason.” The centerpiece of his proposals was a Memorandum to all U.S. Attorneys in which AG Holder “mandated a modification” of the DOJ’s charging policies under 21 U.S.C. § 841 so that prosecutors “should decline to charge the quantity necessary to trigger a mandatory minimum sentence” if the defendant meets certain specified criteria as a nonviolent, low-level drug offender. It may just be a lot of cheap talk or a lot of political grandstanding, but the measured words of Attorney General Eric Holder, repeated in a number of different contexts last week, give some reason to hope that – at long last – the message may be getting through to the top echelons of government: America’s decades-long war on crime is failing. After noting that there is too much incarceration; too much prison overcrowding; and too much recidivism, Attorney General Holder said that the criminal justice system was “broken,” and he called for significant and systemic reforms, including major changes to the “draconian” mandatory minimum sentencing system that is currently in place.
Actually, a hint of what was to come with respect to federal crimes first appeared in the DOJ’s Annual Letter, dated July 11, 2013, to the Sentencing Commission, in which the DOJ responded to its statutory mandate to comment on the operation of the Sentencing Guidelines and to suggest changes to the Guidelines that appear to be warranted.