WASHINGTON — Attorney General Eric Holder will call Monday for major changes in the federal criminal justice system, including doing away with some mandatory minimum sentencing policies that have condemned scores of non-violent offenders to long prison terms and driven up the costs of incarceration.
In a speech before the American Bar Association, Holder will also push for early release of seniors and ill inmates who no longer pose a danger to society, yet require expensive special care.
"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,'' Holder will say, according to excerpts of his prepared remarks. "We must never stop being tough on crime. But we must also be smarter on crime.''
The attorney general's position echoes a rapidly evolving shift in law enforcement and penal policy that has been sweeping the states in recent years. Increasingly, officials are acknowledging that they can no longer bear the cost of warehousing thousands of non-violent offenders — mostly for drug crimes — who have been targets of especially harsh punishment starting more than two decades ago when crime was surging.
Yet as states, including Arkansas, Kansas, Kentucky and Texas, have reduced their prison populations by referring more offenders to treatment or probation, the federal system has continued to grow and now is at least 40% over capacity with nearly 220,000 inmates, according to the Justice Department. About 25% of the Justice budget goes to fund prison-related operations.
"Almost half of them are serving time for drug-related crimes, and many have substance use disorders,'' according to the draft of Holder's remarks. He also notes that about 40% of federal prisoners are re-arrested or have their supervision revoked within three years after release, "often for technical or minor violations of the terms of their release.''
"Today, a vicious cycle of poverty, criminality, and incarceration traps too many Americans and weakens too many communities,'' Holder is expected to say. "However, many aspects of our criminal justice system may actually exacerbate this problem, rather than alleviate it.''
Support for such changes has been building for months among civil rights advocates and lawmakers of diverse political stripes.
In March, Senate Judiciary Committee Chairman Patrick Leahy, D-Vt., joined with Sen. Rand Paul, R-Ky., on a proposal to allow judges greater sentencing flexibility in some cases that would otherwise be subject to mandatory minimum prison terms.
"Our reliance on mandatory minimums has been a great mistake,'' Leahy said then. "I am not convinced it has reduced crime, but I am convinced it has imprisoned people, particularly non-violent offenders, for far longer than is just or beneficial. It is time for us to let judges go back to acting as judges and making decisions based on the individual facts before them.''
Paul said the mandatory sentences "reflect a Washington-knows-best, one-size-fits-all approach," which violates the principle "that people should be treated as individuals.''
Some of the same views are being advanced by the conservative group, "Right on Crime,'' whose members include former House speaker Newt Gingrich and former Florida governor Jeb Bush.
"Conservatives are known for being tough on crime, but we must also be tough on criminal justice spending,'' according to the group's mission statement. "A clear example is our reliance on prisons, which serve a critical role by incapacitating dangerous offenders and career criminals but are not the solution for every type of offender.''
In some cases, the group said, high rates of imprisonment "have the unintended consequence of hardening non-violent, low-risk offenders — making them a greater risk to the public than when they entered.''
Earlier this year, the Justice Department's own inspector general issued a scathing report about its management of thousands of aging and sick offenders, many of whom died while awaiting decisions on applications for early release because of their serious infirmities.
"Housing a continually growing and aging population of federal inmates and detainees is consuming an ever-larger portion of the department's budget," the inspector general's April report said, adding that the burden is "making safe and secure incarceration increasingly difficult to provide and threatening to force significant budgetary and programmatic cuts to other (Justice) components in the near future."
"We are on an unsustainable path here," Justice Inspector General Michael Horowitz said.
Holder's proposals largely track the inspector general's findings.
"We need to ensure that incarceration is used to punish, deter and rehabilitate – not merely to convict, warehouse and forget,'' the attorney general's draft remarks state.
"Clearly, these strategies can work. They've attracted overwhelming, bipartisan support in red states' as well as blue states. And it's past time for others to take notice.''