Criminal Defense After Holder's Pronouncements

Criminal defense attorneys are seeing a change in the landscape of federal crimes. On the same day as United States Attorney General Eric Holder's drug charges and mandatory minimum speech, the DOJ released an eight-page brochure entitled "Smart on Crime: Reforming the Criminal Justice System for the 21st Century." In that brochure, the DOJ announced that, to assist in the shift away from the nation's system of "mass incarceration," it was henceforth going to follow a series of principles in its Smart on Crime Program, including a prioritization of prosecutions to focus on the most serious crimes and a reformation of sentencing to eliminate unfair disparities and reduce overburdened prisons.

Realistically, the implementation of some of the Smart on Crime principles will require statutory or Guideline changes before they can become effective; and, given the political nature of the debate over sentencing policies and practices, those changes may never occur. Even where statutory or specific Guideline changes will not be required, the DOJ was dismayingly vague and short on concrete specifics. Nevertheless, the tone of the Smart on Crime initiative was generally promising; and some of the language in the DOJ's brochure may be of assistance in seeking to persuade a sentencing court to consider alternatives to incarceration, such as drug courts, specialty courts, or other diversion programs, in cases involving low-level, non-violent crimes.

The key for the criminal defense attorney is to take advantage of these recent changes and aggressively advocate that line prosecutors are following the instructions and directives of the United States Attorney General.

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