The US 'cannot incarcerate our way to becoming a safer nation'

August 12, 2013 10:33 AM

Sentencing reform for drug offences is expected be announced by the US Attorney General. Eric Holder will announce Monday that he is mandating the Justice Department modify its policies so that certain non-violent drug offenders will no longer endure “draconian mandatory minimum sentences,” according to excerpts of his remarks to American Bar Association.

Holder wants to go further and work with Congress to return discretion to judges. This builds on other efforts towards mitigating the punitive "Three Strikes Laws" such as the Smarter Sentencing Act currently before the Senate.

Under the reforms, Mr Holder is directing US prosecutors who draft indictments for certain drug offences to omit any mention of the quantity of illegal substance involved, so as to avoid triggering a mandatory minimum sentence. Only non-violent offenders with no previous charges or ties to gangs or cartels will be affected.

Mr Holder is also expected to announce an expanded compassionate release for inmates facing extraordinary circumstances and who pose no threat to the public. The policy is expected to include elderly prisoners who did not commit violent crimes and who have already served a significant portion of their sentences.

Some 47% of US prison inmates have been incarcerated for drug offences, according to the Federal Bureau of Prisons.

- Black and Hispanic people are over-represented in the prison system, 37% and 34% respectively
- US prisons are operating at nearly 40% above capacity
- Some 219,000 federal inmates are behind bars
- The cost of incarceration in the US was $80bn (£50bn) in 2010

Source: Department of Justice, Federal Bureau of Prisons (via BBC)

posted by arcticseal (68 comments total)

I hope this is real, done well, robust and executed quickly.
posted by lalochezia at 10:36 AM on August 12, 2013 [20 favorites]

It's actually a lot more than just minimum drug sentencing.
posted by stbalbach at 10:38 AM on August 12, 2013

Help thy neighbor and go straight to prison
posted by mattbucher at 10:40 AM on August 12, 2013 [5 favorites]

47% of US prison inmates have been incarcerated for drug offenses

That's only federal prisons, right? I bet the number would go up if you included state prisons....
posted by mr_roboto at 10:44 AM on August 12, 2013

It's a band-aid on the large, gushing wound that is the drug war but still a welcome band-aid.
posted by Drinky Die at 10:44 AM on August 12, 2013 [10 favorites]

Only non-violent offenders with no previous charges or ties to gangs or cartels will be affected.

Whether or not this is the intent, I think this policy will benefit white people a great deal more than minorities.

I assume that "non-violent" in this context would mean that the person did not have a weapon at the time of the arrest or sale. As drug transactions are more dangerous in poor communities than they are in rich communities, my expectations would be that a higher percentage of whites would be considered "non-violent." Most significantly, gang affiliation skews things incredibly against minorities as whites are far less likely to be in a gang.

I would be interested to see what the racial breakdown in Federal Court is for people with no previous charges.
posted by flarbuse at 10:48 AM on August 12, 2013 [5 favorites]

"Let's face it: keeping such a high percentage of the population in prison is expensive. Guards everywhere, random inspections, constant surveillance, restrictions on movement, it all adds up. In addition to that, we have to house and feed the prisoners... talk about a free ride. Our new, revolutionary approach is to turn the entire country into a prison instead -- one where the prisoners have to take care of their own room and board."
posted by Behemoth at 10:50 AM on August 12, 2013 [4 favorites]

I guess this is an example of the new "treat Congress as damage and route around it" path the administration is taking? I approve.
posted by edheil at 10:51 AM on August 12, 2013 [16 favorites]

I bet the number would go up if you included state prisons....

2,193,798 according to the BBC. The Sentencing Project has similar numbers.
posted by arcticseal at 10:52 AM on August 12, 2013 [1 favorite]

I never thought I would see this in my lifetime.
posted by Talez at 10:53 AM on August 12, 2013 [1 favorite]

NPR updated their brief article on this, summarizing what Holder said today. This looks to be one of the first news briefs on the actual address. This NBC News blog has a bit more, but there's more than just Holder's Bar Association speech there.
posted by filthy light thief at 10:54 AM on August 12, 2013

2,193,798 according to the BBC.

I meant the fraction incarcerated on drug charges.
posted by mr_roboto at 10:56 AM on August 12, 2013 [1 favorite]

As observed by Alexander in *The New Jim Crow*, while reducing prison sentences is nice it won't solve the problem. In the second places, as observed by flarbuse, this is going to mostly benefit white people. But there's something more important than that: as long as vast numbers of black people are being swept up and being labeled as felons it won't actually solve the problem.

That label, "convicted felon" condemns a person to a life as a second class citizen. Their right to vote is stripped away (often permanantely, and even in states that allow felons to regain their right to vote the volume of paperwork and frequent fines and fees that have to be paid to get it back dissuade most). Employers often simply throw away any job applications from convicted felons. Neither food aid nor housing aid are available for convicted felons. School aid is cut off entirely for anyone convicted of any drug crime ever. Basically the felon enters an alternate universe where their odds of being able to re-enter normal society are pretty much nill. So they go back to the criminal economy and now they aren't first time offenders so Holder's new guidelines don't apply to them.

Even more important, as long as anti-drug policing focuses almost entirely on black people, the system is still causing great harm. Only 15% or so of drug dealers and users are black. Over 90% of people convicted of drug crimes are black. Look at the stop and frisk policy in NYC: it applies only to black people. Same goes for almost all druge enforcement, the police simply do not bother to even police white communities for drug crimes.

So yes, on the one hand shorter sentences are kind of nice. But from the more important perspective it really doesn't change much.

The next time you see someone wringing their hands over "missing black fathers", ask yourself this: where did those black fathers go? The answer is usually prison. We do not have an epidemic of black men simply abandoning their families, we have an epidemic of the US government subjecting black men to mass arrest and incarceration.
posted by sotonohito at 10:57 AM on August 12, 2013 [88 favorites]

From mattbucher's link: "Some day, Americans will look back and wonder at how we as a society could be much more willing to invest in prisons than in schools."

Substitute "wonder" with "appalled" and you're close.
posted by arcticseal at 10:57 AM on August 12, 2013 [3 favorites]

Let's hope this serves as an example to the cash-strapped states that insist on holding many thousands of non-violent offenders because of some wacko shit Nancy Reagan said when I was a kid.
posted by Mister_A at 10:57 AM on August 12, 2013 [5 favorites]

That's only federal prisons, right? I bet the number would go up if you included state prisons....

I meant the fraction incarcerated on drug charges.

No--a much lower percentage of state prison inmates are currently serving sentences for drug crimes than in the federal system. See table 9 (PDF). Obviously, you have to be careful with how far you take this, because if for example someone is incarcerated for a drug crime, then cannot get a job as a result and commits a burglary, it's a fair point to note the impact of the drug conviction. But the percentage of state prisoners serving time directly for a drug crime is much lower than 47%.
posted by dsfan at 11:01 AM on August 12, 2013

According to this, the number of people in jail for drug offences breaks down as follows:

State: 242,200
Federal: 97,500
Jails: 167,000
posted by arcticseal at 11:02 AM on August 12, 2013

From NPR:

Focusing in large part on what he referred to as the so-called war on drugs and the millions of people it has put in prison, Holder said incarceration should be to "punish, deter and to rehabilitate, not to merely warehouse and forget."

It seems the system has attempted to do the first two already. Rehabilitation is the new focus. I'm hopeful, especially as even the Cato institute is gushing over Portugal's success with drug decriminalization:

The data show that, judged by virtually every metric, the Portuguese decriminalization framework has been a resounding success. Within this success lie self-evident lessons that should guide drug policy debates around the world.

As a refresher, Portugal decriminalized all drugs in 2001, decriminalizing drug use. From Wikipedia:

Drug addicts were then to be aggressively targeted with therapy or community service rather than fines or waivers. Even if there are no criminal penalties, these changes did not legalize drug use in Portugal. Possession has remained prohibited by Portuguese law, and criminal penalties are still applied to drug growers, dealers and traffickers.

Treatment and risk reduction worked, let's give it a try. Until then, this is a great start.
posted by filthy light thief at 11:03 AM on August 12, 2013 [4 favorites]

So if you released everyone from Federal prison that was in on a drug-related charge, you'd still be at 93% capacity? That's insane!
posted by blue_beetle at 11:04 AM on August 12, 2013

some wacko shit Nancy Reagan said when I was a kid.

Killer Mike would agree with you.
posted by mattbucher at 11:04 AM on August 12, 2013 [1 favorite]

I still don't see how the legislative branch has the authority to remove all discretion from the judicial branch. Isn't that the point of having an independent judiciary?
posted by one more dead town's last parade at 11:06 AM on August 12, 2013

the drug war was always about attacking the hippies and rolling back LBJ's civil rights coup. have the politics really changed? ask yourself where America would be if LBJ hadn't decided that ending Jim Crow was worthy of politcal seppuku, and you get a good sense of where america actually is, once you get below the surface. Having a black president doesn't, by itself, change anything about the underlying racial politics.

expect to see an upsurge in "gang" activity... and anyone "dealing" is connected to a cartel one way or another.
posted by ennui.bz at 11:08 AM on August 12, 2013 [7 favorites]

The next time you see someone wringing their hands over "missing black fathers", ask yourself this: where did those black fathers go? The answer is usually prison. We do not have an epidemic of black men simply abandoning their families, we have an epidemic of the US government subjecting black men to mass arrest and incarceration.

This. To put it in further appalling perspective, for the past couple of decades the U.S. has imprisoned black men at a rate nearly six times higher than South Africa during apartheid.
posted by scody at 11:09 AM on August 12, 2013 [29 favorites]

I'm not so sure this is strictly going to help white people. I know quite a few people of color in Philly who've been convicted on non-violent trafficking offenses; mostly pot. We don't have much of an organized gang scene, compared with LA or CHicago anyway. I think this would help many people in Philly if state law here followed suit.

I do agree wholeheartedly though, that the punitive measures in place against convicted felons only serve to spur them on to a life of crime; we have to change that.
posted by Mister_A at 11:09 AM on August 12, 2013 [2 favorites]

President Obama, if all you did in your time in office is end the War On Drugs, it would be a legacy that would single-handedly improve the lives of millions of Americans.
posted by dry white toast at 11:10 AM on August 12, 2013 [11 favorites]

Mod note: A couple comments removed, cool it with the derails about stuff barely mentioned in passing in some otherwise unrelated comment.
posted by cortex (staff) at 11:17 AM on August 12, 2013

I wish I could favorite sotonohito's comment ten times. Lower sentences are great, but the reason we have so many people in prison is not just a single crime & a long sentence but an entire system that makes it very hard for people to avoid crime, psychologically and practically. First we treat young people (mostly boys) from a very early age like criminals. Police stop you at any time, search you etc (sure, the kid could decline but wouldn't the cop just claim a reason why they had to submit? and how many kids are going to defy authority?) Then once you commit one crime, even a minor one (or even no matter how young or coerced into it), it's very hard to stay away from crime. What are you supposed to do for a living when you can't get student loans, employers won't even give you a job sweeping floors, you can't get housing or other welfare benefits? If prison time is "serving your debt to society" then the rest of that crap has to go.
posted by R343L at 11:20 AM on August 12, 2013 [5 favorites]

I'm hopeful, especially as even the Cato institute is gushing over Portugal's success

I'm confused, why "even the" Cato Institute? They're libertarians, of course they're on board with drug decriminalization.

Were you thinking of the Heritage Foundation? They seem to be just as pro-drug-war as ever, unfortunately.

Bonus Alien vs. Predator in the form of this Heritage vs. Cato debate, which touches on the difference of opinions w/r/t drug policy.
posted by Kadin2048 at 11:22 AM on August 12, 2013 [3 favorites]

The tiny optimistic part of me thinks this is a good development. The other part thinks we'll just find different ways to keep the prisons full.
posted by RobotVoodooPower at 11:33 AM on August 12, 2013 [2 favorites]

Just wanted to chime in and say something along the lines of "just because it doesn't solve the problem entirely doesn't mean it's not a step in the right direction."

It's called progress for a reason. And if you do it right you never stop doing it at all. It's just for the last little bit* we've stopped doing it entirely.

*open to interpretation
posted by Blue_Villain at 11:49 AM on August 12, 2013 [1 favorite]

Here's the text of his speech.
posted by gingerbeer at 11:50 AM on August 12, 2013

ACLU response.
posted by gingerbeer at 11:53 AM on August 12, 2013 [2 favorites]

sotonohito: "Even more important, as long as anti-drug policing focuses almost entirely on black people, the system is still causing great harm. Only 15% or so of drug dealers and users are black. Over 90% of people convicted of drug crimes are black. Look at the stop and frisk policy in NYC: it applies only to black people. Same goes for almost all druge enforcement, the police simply do not bother to even police white communities for drug crimes."

It's generally not quite that directly racist. It's not that police don't look for drug crimes or whatever in white neighborhoods, it's that they're assigned to patrol minority majority neighborhoods more often. Because of past and existing policy, those neighborhoods tend to be poorer and higher crime. As if that wasn't enough, white people tend to deal drugs inside their houses, rather than out on the street where they can be seen. I don't actually know why that is, but it is a thing.

So yes, our criminal justice system is incredibly racist and needs major adjustment yesterday, of which Holder's new policy is only a tiny fraction of the need. That said, it's typically not that everybody in the system is going to work every day with the express purpose of fucking over minorities, although there is still plenty of that going around.

I say this not to ignore the reality of the racist effect and in many cases racist intent involved in our crime policy, but because I think it's an important distinction in how the problem is approached. To be quite honest (and this will never happen), it would be fantastic if we had people telling kids how to avoid getting fucked over when they inevitably decide to try drugs or whatever. Unfortunately, that's seen as promoting drug use rather than what it is really doing, which is promoting keeping people out of prison who are likely to go on to be normal members of society once they age out of the partying and drug consuming typical of young people if only they don't get swept up in the dragnet before then.
posted by wierdo at 11:54 AM on August 12, 2013

So yes, on the one hand shorter sentences are kind of nice. But from the more important perspective it really doesn't change much.

He's not just talking about shorter sentences though. He is also talking about exercising prosecutorial discretion to not bring charges at all. The speech is a really good one. He is acknowledging that the War on Drugs has essentially failed and acknowledging that it has done appalling damage to black communities in the US. It is important to hear a US A/G acknowledge that. He is also making it clear that Obama is trying to get legislative action on this issue, although I imagine his chances of getting the Republicans in the House to act on this are essentially nil. There's probably not a huge amount more than this that the administration can do within the framework of existing law.
posted by yoink at 11:56 AM on August 12, 2013 [5 favorites]

And here's the CSPAN link if you want to watch it.
posted by gingerbeer at 11:58 AM on August 12, 2013 [1 favorite]

This is basically going to be the beginning of the end of the drug war. I'll give it another few years til pot is legal, and five years after that for everything else.
posted by empath at 11:58 AM on August 12, 2013 [1 favorite]

I'm hesitant to be too optimistic about anything here, but it'd certainly be funny if Eric Holder got his sixth season of The Wire after all.
posted by Kosh at 12:01 PM on August 12, 2013 [2 favorites]

This is basically going to be the beginning of the end of the drug war.

That may well be too optimistic (there's an awful lot of drug war crap hard-wired into the system legislatively, and it's going to be very hard to remove it; and there's a huge prison-industrial complex that will fight tooth and nail at the ballot box to keep the system we currently have in place). On the other hand, there's one thing you can say for sure: if liberals respond to this initiative with a "ho hum, that's nice and all but until the problem is completely fixed we're just going to sit on the sidelines and snark" while conservatives respond with "OMG, we must get our troops to the ballot boxes to sink this thing!!!" then the conservatives will win on the issue. Politicians care, above all, about the issues that will actually make a difference to how people vote. If they continue to believe that the only way to get punished at the ballot box on crime issues is if you look "soft on crime" then nothing is going to change legislatively.
posted by yoink at 12:08 PM on August 12, 2013 [11 favorites]

Marijuana Majority's response.
posted by gingerbeer at 12:12 PM on August 12, 2013

Well it's a start I guess but not likely to have a meaningful impact, at least as far as the policy is currently framed. Holder said:

"Certain low-level, nonviolent drug offenders who have no ties to large-scale organizations, gangs, or cartels will no longer be charged with offenses that impose draconian mandatory minimum sentences. They now will be charged with offenses for which the accompanying sentences are better suited to their individual conduct, rather than excessive prison terms more appropriate for violent criminals or drug kingpins"

So the way things work now is, suppose you're caught with 10kg of meth in your car, if the feds list the the weight of the drugs in the indictment, mandatory minimum sentences apply. Defendants often negotiate to try to get the weight element removed from a plea, to allow them the chance to ask the judge for a lower sentence. Holder is saying that for certain people (non-violent, first time, no gang ties, etc), the feds will now just charge the drug offense, without listing the weight.

The reason why I don't think it will make much difference is that the people covered by this policy already had a way of avoiding mandatory minimums, called "the safety valve." 18 USC 3553(f), for those interested. It's a provision that allows drug offenders to be sentenced without regard to mandatory minimums if they have low criminal history, didn't use a gun in the offense, weren't a manager, and if they disclose their role in the offense. So it just seems like this policy will mostly apply to people who already were eligible for the safety valve provisions. Plus, an awful lot of people charged these days with federal drug offenses had some ties, even thin ties, to a gang.

Anyway, I don't want to be too much of a downer, I admit it is good to hear this sort of sentiment from the AG and I hope the policies continue in a more sensible direction.
posted by bepe at 12:16 PM on August 12, 2013 [1 favorite]

This will only apply to federal crimes/federal drug busts, though, right? Aren't a lot of drug crimes on the books state rather than federal? *cough Rockefeller* What I'm hearing is that this will mostly apply to federal officers arresting state-legal individuals.
posted by corb at 12:19 PM on August 12, 2013

(Also, I know the Rockefeller laws are no longer in effect, but what I'm saying is that some of the strongest enforcement doesn't seem to be top down but rather bottom up.)
posted by corb at 12:20 PM on August 12, 2013

Did you mean "strongest" as in "most draconian"? Because yes and no. Remember that several states have now made certain forms of pot legal... which is in direct opposition to the de facto federal laws. So while I imagine that certain states may in fact be more harsh than the federales would be, I can also imagine others being less so.
posted by Blue_Villain at 12:46 PM on August 12, 2013

Yes, corb, this will only apply to federal prosecutions. So that in itself limits the set of people affected. I suppose it varies by locality but in my district most if not all federal drug prosecutions are for large amounts of drugs (minimum 100kg marijuana, for instance), and many involve multi-defendant drug ring busts, which are pretty much always linked to some larger drug trafficking organization. But again that's just my view of one area, maybe other federal jurisdictions are still going after small time first offenders, could be.
posted by bepe at 12:47 PM on August 12, 2013

The tiny optimistic part of me thinks this is a good development. The other part thinks we'll just find different ways to keep the prisons full.
posted by RobotVoodooPower at 2:33 PM on August 12 [2 favorites −] Favorite added! [!]

I'm hoping white collar crime.

It isn't likely, but hey... its a hope.
posted by Nanukthedog at 12:47 PM on August 12, 2013

A corollary, while we're here, is that we can't save our way to prosperity, either.
posted by Benny Andajetz at 1:09 PM on August 12, 2013

Most significantly, gang affiliation skews things incredibly against minorities as whites are far less likely to be in a gang.

This stuck out to me as well -- how does one defend against an accusation of "gang affiliations"? Is there specific criteria in making such a determination?
posted by Hoopo at 1:20 PM on August 12, 2013

empath: This is basically going to be the beginning of the end of the drug war. I'll give it another few years til pot is legal, and five years after that for everything else.

I'd like to reiterate that if the US were to follow Portugal's footsteps, all drugs wouldn't be legal, possession would no longer be a criminal offense with prison a possible punishment.

There is a broad gradient between criminally illegal and legal in any form.
posted by filthy light thief at 1:29 PM on August 12, 2013

So it just seems like this policy will mostly apply to people who already were eligible for the safety valve provisions. Plus, an awful lot of people charged these days with federal drug offenses had some ties, even thin ties, to a gang.

I admit that was my cynical first reaction as well. People who would benefit from this "recommendation," would already benefit from the existing remedies. And will this "recommendation" really mean anything? Doesn't it still depend on the prosecutors' discretion (which, according to the ACLU response, they already had)?
posted by mrgrimm at 1:29 PM on August 12, 2013

Federal prosecutors definitely have the discretion now to either file or not file the weights in a drug case. But policies on how to use that discretion vary widely by district. The new DOJ policy will apparently set national guidelines for every office to follow.

I wonder whether this policy will only apply at the time of filing. For instance, if a defendant under the new policy is charged, and no mandatory minimum is hanging over his head, if he insists on a trial, will the prosecutors be permitted to add the weight element, or threaten it? Right now mandatory minimums are a huge prosecutorial stick to get low level people to plea quickly. Without that threat, more low level people might be willing to roll the dice on a trial. If that's how things play out, it could be a real benefit to the system. It is amazing the corrupt stuff that only comes to light in these sort of cases when the defendant insists on a trial.
posted by bepe at 1:55 PM on August 12, 2013 [1 favorite]

Stop-and-Frisk Practice Violated Rights, Judge Rules

U.S. Prison Populations Decline, Reflecting New Approach to Crime

20 Legal Medical Marijuana States and DC

All baby steps, yes, but steps in the right direction.
posted by gwint at 2:02 PM on August 12, 2013 [5 favorites]

Meanwhile, the for-profit penal system is sure to be all like WHOA. WHOA. WHOA WHOA WHOA WHOA WHOA! LET'S NOT GET ALL CRAZY HERE!
posted by NedKoppel at 2:38 PM on August 12, 2013 [3 favorites]

if liberals respond to this initiative with a "ho hum, that's nice and all but until the problem is completely fixed we're just going to sit on the sidelines and snark" while conservatives respond with "OMG, we must get our troops to the ballot boxes to sink this thing!!!" then the conservatives will win on the issue.

The drug war is not really a conservative issue. There's been a left-right consensus on it for a long time. The current vice-president is the guy that pushed through the Rave Act, after all.
posted by empath at 3:17 PM on August 12, 2013 [1 favorite]

Don't forget that the DEA fakes evidence, local cops plant evidence, etc.

I've mentioned it before, but if you're on facebook I strongly recommend liking the police the police page that reports on police misconduct.
posted by jeffburdges at 3:28 PM on August 12, 2013

Prosecutors also have a scientifically established pattern of choosing to bring harsher charges to black defendants. Again, the Supreme Court ruled that this proven pattern could not be the basis for any corrective action unless someone had proof that a particular prosecutor was actively, deliberately, individually, racist.

So yeah, I don't really think putting it in the hands of prosecutors is going to change anything. Prosecutors already have a tremendous amount of leeway, and they use it to chase after black people while essentially ignoring white people.

@wierdo: I don't think that cops or prosecutors are especially racist in the KKK sense of the word. But there is no denial that their actions, collectively, demonstrate a racist policy and outcome.

Also? The excuse that white people deal drugs indoors? That's been proven false. Cops simply don't bother checking white people, they don't bother patting them down, and even when they see white people dealing on street corners they elect to arrest a black guy instead. Again, not because they're KKK racist, but they are certainly enacting a racist policy.
posted by sotonohito at 4:32 PM on August 12, 2013

Won't someone please think of the children prison industrial complex?
posted by ZenMasterThis at 4:39 PM on August 12, 2013

Based upon his, and his boss's prior actions, we have no reason to believe this will make any difference whatsoever.
posted by SteveLaudig at 4:43 PM on August 12, 2013 [1 favorite]

Perhaps a companion initiative directed toward prosecuting those involved in the financial/mortgage crisis could be set up to capture the resources, including especially the prison cells made available as these and related reforms are implemented.

Hire former DEA staff and pursue these criminals with the vengeance that the DEA is known for.
posted by she's not there at 4:58 PM on August 12, 2013

Obama isn't perfect, but it is difficult to imagine this happening under a Republican administration.
posted by JHarris at 5:04 PM on August 12, 2013 [2 favorites]

Obama isn't perfect, but it is difficult to imagine this happening under a Republican administration.

Depends, if they start to lean towards nominating someone like Rand Paul who has libertarianism as part of the brand I could see it. Racism is also a part of that particular family brand though so hard to say.
posted by Drinky Die at 5:33 PM on August 12, 2013 [1 favorite]

Hope vs. Wishful Thinking.

I am pessimistic about near term (1-3 yrs) results but I have hope, real hope that at some point the power of the cartels will force us to decriminalize so to cut back their source of funds. All Holder's words are worth as much as when he says "We don't torture" and "We wouldn't target Americans with drones" and "We don't eavesdrop on Americans" and "We will bring the culprits of the 2008 to trial". I have hope -- confident assurance -- these stepping stones yet untrod are a roadmap to substantive changes.
posted by surplus at 5:53 PM on August 12, 2013 [1 favorite]

Charles Pierce: Truth and Consequences

You will hear, often, of the explosion in the United States prison populations "since 1980." That date is not accidental. We elected a president that year who ran on an implicitly — and, occasionally explicitly — racist appeal to white voters by which he argued sub rosa that those white voters should be frightened of black criminals, and angry at black people who were "exploiting" the welfare system. This was the final triumph of the political calculation made when Harry Dent drew up the Southern Strategy for the Republicans when the Democratic party became identified with the triumphs of the Civil Rights Movement in the 1960's. It succeeded so well that it kicked off a decade of racial reaction. The accomplishments of the Civil Rights Movement began to be rolled back. (The Justice Department went to court to defend tax exemptions for segregated "Christian academies.") This, of course, continues to this moment, with the assault on the Voting Rights Act.

The entire fundmental basis for what became known as "cultural conservatism" was a fear of black crime and an anger at welfare "fraud." It was an decade of archetypes. Welfare queens. Crack babies. Superpredators. And the national media went along for the ride, because the archetypes were scary enough — "IN YOUR TOWN!" — to move the ratings needle. That very few of them panned out didn't matter. They served everyone's short-term goals well enough to become established as fact. Then, in the middle of it all, the "war" on drugs got itself declared, and the face of the war on drugs was a black or brown face, and scared legislatures passed appallingly draconian laws in response. And a lot of black and brown people — an inordinate number, given the population as a whole — got tossed into prisons that are now so overcrowded that most of them are timebombs. So we're looking at some of those laws again. This is a good thing. But if we really want to do it right, we should look honestly at the history of those laws and decide which consequences were truly unintentional.

posted by zombieflanders at 8:09 PM on August 12, 2013 [4 favorites]

More details on the memo.
posted by RobotVoodooPower at 9:19 PM on August 12, 2013

Don't forget that the DEA fakes evidence, local cops plant evidence, etc.

This week's DEA bombshell shows us how the drug war and the terror war have poisoned our justice system
posted by homunculus at 9:47 PM on August 12, 2013 [3 favorites]

Two Powerful Signals of a Major Shift on Crime:

Two decisions Monday, one by a federal judge in New York and the other by Attorney General Eric H. Holder Jr., were powerful signals that the pendulum has swung away from the tough-on-crime policies of a generation ago. Those policies have been denounced as discriminatory and responsible for explosive growth in the prison population.

Critics have long contended that draconian mandatory minimum sentence laws for low-level drug offenses, as well as stop-and-frisk police policies that target higher-crime and minority neighborhoods, have a disproportionate impact on members of minority groups. On Monday, Mr. Holder announced that federal prosecutors would no longer invoke the sentencing laws, and a judge found that stop-and-frisk practices in New York were unconstitutional racial profiling.

While the timing was a coincidence, Barbara Arnwine, the president of the Lawyers Committee for Civil Rights Under Law, said that the effect was “historic, groundbreaking, and potentially game-changing.”

posted by gwint at 7:37 AM on August 13, 2013

mrgrimm: "And will this "recommendation" really mean anything? Doesn't it still depend on the prosecutors' discretion (which, according to the ACLU response, they already had)?"

The difference is that now they have been directed to exercise that discretion in certain circumstances, largely yet to be determined.

sotonohito: "The excuse that white people deal drugs indoors? That's been proven false."

Linky McLinkerson? NYC is not most of the country. In most of the country, even my largely segregated town, cops don't do NYC-style stop and frisks on any real scale. They're too busy planting weight on people that piss them off and stealing drugs from the evidence locker to sell like it's Vice City.

But yes, someone with my skin color driving a reasonably nice car is a lot less likely to be subject to search or even being stopped in the first place. That isn't right and needs to change, but being dismissive of the role that is played by people's own actions doesn't help. People need to be educated on how they can avoid the criminal justice system up until the point that we manage to make the "justice" part mean something more than retribution again. That in no way excuses the racism inherent in the system, but it would actually help keep people from getting caught up in the meat grinder.
posted by wierdo at 12:50 PM on August 13, 2013 [1 favorite]

7 Bills That Could Actually Pass

Bipartisan legislation to reform the country's statutory minimum-sentencing laws, to combat skyrocketing prison populations, and to curb what some say is money wasted on lengthy prison terms for nonviolent crimes, including many drug offenses, is under construction.

Bills such as the Justice Safety Valve Act of 2013, for example, would give judges more discretion in setting sentences. The measure was introduced by Senate Judiciary Committee Chairman Patrick Leahy, D-Vt., and Sen. Rand Paul, R-Ky. A companion measure has been introduced with bipartisan sponsors in the House.

A separate measure to modernize federal sentencing for nonviolent offenses, The Smarter Sentencing Act, has been introduced by Senate Assistant Majority Leader Dick Durbin, D-Ill., and Sen. Mike Lee, R-Utah.
posted by Drinky Die at 12:58 PM on August 13, 2013

First portions of Aaron Swartz's secret service file released
posted by jeffburdges at 11:32 PM on August 13, 2013