On Monday, Attorney General Eric Holder announced some fundamental changes in how the Department of Justice is going to address charging, prosecuting, and ultimately plea bargaining criminal cases in the federal system. Holder announced the “Smart on Crime” initiative during a speech to the ABA.
From my reading, there are some key changes including:
1. A shift away from uniform charging and sentencing. The Attorney General is now calling for “district-specific guidelines” to determine how to charge cases and prioritize what kinds of cases to pursue. This is a significant shift from previous policies that sought to have nationwide uniformity in charging and plea bargaining.
2. A recognition (better late than never) that incarceration is not a cure-all to our problems and along with that recognition a call for the use of more alternatives to incarceration for “low level, non-violent crimes.” These alternatives seem to include drug courts and veterans courts which have not yet been widely used in the federal system, in contrast to what is happening at the state level.
3. An intention to seriously examine collateral consequences of criminal convictions. It remains to be seen how this will play out, but from the document released on Monday it seems that this could be a factor to legitimately consider in plea negotiations. For now, the statement calls for a new memorandum to instruct DoJ “components” on how to deal with collateral consequences including in a rule-making context.
For the full statement of Smart on Crime see here .
Holder’s speech is worth reading in full. A few of the lines that stood out to me:
“It’s clear…that too many Americans go to too many prisons for far too long, and for no truly good law enforcement reason.”
“…widespread incarceration at the federal, state, and local levels is both ineffective and unsustainable. It imposes a significant economic burden–totaling $80 billion in 2010 alone–and it comes with human and moral costs that are impossible to calculate.”
Holder also calls for a review of mandatory minimums and “inflexible sentences” that decrease the discretion of the prosecutors and judges.
This seems a step in the right direction. But, there will need to be serious institutional changes for the prosecutors responsible for making charging and plea bargaining decisions to handle cases differently and decide to decline prosecutions at a federal level. The “hard on crime” approaches are deeply entrenched in the federal criminal justice system and I suspect it will not be easy to change.
But, this new announcement is encouraging. And, I will be interested to watch how specialty courts (such as drug courts, mental health courts, and veterans courts) develop in the federal system.
One interesting note. Although 97% of all federal convictions are through plea bargaining, both Holder’s statement and the Smart on Crime document do not use the term.
