Eric Holder Outlining New Justice Department Drug Sentencing Reforms
WASHINGTON -- The Justice Department will avoid charging certain low-level and nonviolent drug offenders with crimes that carry mandatory minimums, Attorney General Eric Holder will announce Monday. The policy shift will allow certain defendants -- those without ties to large-scale organizations, gangs or cartels -- to avoid what Holder called "draconian mandatory minimum sentences."
Holder, in a speech before the American Bar Association in San Francisco on Monday, will also announce that the Justice Department is giving U.S. attorneys throughout the country a greater amount of prosecutorial discretion.
"Some issues are best handled at the state or local level," Holder will say, according to prepared remarks provided by the Justice Department. "And that’s why I have directed the United States Attorney community to develop specific, locally-tailored guidelines -- consistent with our national priorities -- for determining when federal charges should be filed, and when they should not."
The "Smart On Crime" plan that Holder is announcing intends to lower the overall federal prison population. As part of that measure, Holder will announce, elderly prisoners who committed no violent crimes and served a significant portion of their sentences may be eligible for early release.
"Today, a vicious cycle of poverty, criminality, and incarceration traps too many Americans and weakens too many communities," Holder will say. "However, many aspects of our criminal justice system may actually exacerbate this problem, rather than alleviate it."
Under the drug policy, Holder will say defendants would 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."
By Geoffrey R. Stone Edward H. Levi Distinguished Service Professor of Law, University of Chicago Posted: 08/13/2013 12:27 am
Every once in a while, I burst with pride in the American legal system. It doesn't happen as often as I would like, but Monday was such a day.
On Monday, Judge Shira A. Scheindlin, a federal judge in New York City, handed down her decision in Floyd v. The City of New York. The plaintiffs in Floyd challenged the constitutionality of New York City's stop-and-frisk policy. In a truly remarkable and courageous opinion, Judge Scheindlin held that policy unconstitutional.
The Fourth Amendment to the United States Constitution provides that "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures shall not be violated." To the Framers of our Constitution, this was a fundamental precept of American freedom. This guarantee preserves our privacy and dignity, and reaffirms that in a self-governing society the government must respect the rights of the individual.
As the Supreme Court recognized more than a century ago, "No right is held more sacred, or is more carefully guarded, by the . . . law than the right of every individual to the possession and control of his own person, free from all restraint or interference, unless by clear and unquestionable authority of law."
To this end, the Supreme Court has long held that a police officer cannot constitutionally search or seize an individual unless the officer has probable cause to believe that the individual has committed, or is about to commit, a crime.
In 1968, however, in a case called Terry v. Ohio, the Court, in an opinion by Chief Justice Earl Warren, carved out a carefully limited exception to the probable cause requirement, holding that a police officer can constitutionally "stop" an individual on the street for questioning if the officer has "reasonable grounds to suspect" that the person has committed, is committing, or is about to commit a crime, and that the police officer can constitutionally "frisk" that person for weapons if he has "reasonable grounds to suspect" that the individual is "armed and presently dangerous."
The Court was fully aware that this was a constitutionally precarious decision, for it authorized "substantial interference" with the liberty and dignity of the individual by police officers whose judgment will naturally be "colored by their primary involvement in 'the often competitive enterprise of ferreting out crime.'" Moreover, the Court acknowledged that this practice could very well "exacerbate police-community tensions in the crowded centers of our Nation's cities."
Nonetheless, Chief Justice Warren held that the practice of stop-and-frisk, if carefully administered and implemented, could serve important law enforcement goals and was therefore not an "unreasonable search and seizure" in violation of the Fourth Amendment.
In her decision in Floyd, Judge Scheindlin found that the New York Police Department had used stop-and-frisk an astonishing 4.4. million times between 2004 and 2012. After carefully scrutinizing the Department's use of this practice, she concluded that the activities of the Department violated not only the Fourth Amendment, but also the provision of the Fourteenth Amendment guarantee all persons "the equal protection of the law."
Judge Scheindlin found that in 88 percent of these stops, the individual was innocent of any wrongdoing; that in 98.5 percent of the frisks, no weapon was found; that 83 percent of the Department's stop-and-frisks were directed at blacks and Hispanics, even though blacks and Hispanics make up only 52 percent of the population; that the police were 40 percent more likely to use force when dealing with blacks and Hispanics than when dealing with whites; and that the officers were 40 percent more likely to find weapons and 28 percent more likely to find contraband when they frisked whites than when they frisked blacks and Hispanics.
Judge Scheindlin therefore held that, although the use of stop-and-frisk is constitutionally permissible if it is undertaken in accord with constitutional requirements, the New York City Police Department had in fact employed this practice in a manner that blatantly violated both the Fourth Amendment and the Equal Protection Clause of the United States Constitution.
A decision like the one in Floyd illustrates why we need a strong and independent federal judiciary. For most New Yorkers, the Police Department's stop-and-frisk policy seemed something to applaud. It helped bring down crime and made the City safer. Moreover, most New Yorkers knew to a moral certainty that they themselves would never be subjected to the indignity and public humiliation of a stop-and-frisk. So, why not have such a policy?
The American judiciary exists, first and foremost, to protect the constitutional rights of those who are not in the majority. It exists to ensure that our government treats all of us with respect. It exists to protect the rights of the disadvantaged, the oppressed, the powerless and the despised, even when disadvantaging them advantages the rest of us.
Three cheers for Judge Scheindlin. She is what the American judicial system, at its best, is all about.
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