Weekly Standard

Who Gets Sent to Federal Prisons?

Weekly Standard

President and CEO

Several weeks ago in San Francisco, Attorney General Eric Holder told the American Bar Association that our criminal justice system is too harsh, too costly, and gives convicted African-American males sentences 20 percent longer than others for similar crimes.

According to Holder, while the U.S. population has increased by about a third since 1980, the federal prison population has grown eightfold. "It's clear—as we come together today—that too many Americans go to too many prisons for far too long, and for no truly good law enforcement reason."

In fact, all federal inmates added together (219,000) constitute less than one-tenth of 1 percent of the U.S. population, and state prison populations are down for the third straight year. Still, it is time, according to Holder, "to implement common-sense changes that will foster safer communities from coast to coast."

The attorney general called for a National Forum on Youth Violence Prevention. In addition, he announced: "We have assembled a new task force to respond to the extreme levels of violence faced by far too many American Indian and Alaska Native children. Next month, we will launch a national public awareness campaign—and convene a Youth Violence Prevention Summit—to call for comprehensive solutions."

With the national forum, task force, and summit, Holder wants to foster a broad discussion about the state of American criminal justice, but meanwhile he is especially concerned about drug convictions, singling out mandatory minimum sentences for drug crimes as a root cause of injustice. He will direct U.S. attorneys to reconsider the charges they bring in federal cases, in which mandatory minimum sentences are involved, charging "low-level, nonviolent drug offenders" with lesser violations to avoid the mandatory minimum penalties under federal drug laws.

The attorney general spoke as if he were unaware that federal law has no mandatory minimum sentences for simple possession of illegal drugs of any amount. The lone exception is crack, and there a special "safety valve" provision lets any such "low-level, nonviolent offenders" off with lighter sentences. Holder is therefore talking about individuals charged with trafficking, not possession of illegal drugs.

So who are the less than one-tenth of 1 percent of Americans languishing in federal prison? The latest U.S. Sentencing Commission data reveal that drug offenses are actually not the best way to get a cell at Allenwood or Marion. For the past four years, immigration cases have edged out drug crimes as the largest single type of federal offense (in fiscal year 2012, 46 percent—almost half—of those sentenced to federal prison were not U.S. citizens). Drug convictions have actually been trending down, from a majority of all cases to less than one-third.

Holder said he is troubled that we are "coldly efficient" in our incarceration efforts. Of course, the accused stand trial and must be found guilty before they go to prison, and as the Sentencing Commission notes, the federal criminal justice system seems to be doing quite an efficient job of convicting the guilty. In fiscal year 2012 (under the Obama administration), 97 percent of all offenders pleaded guilty, the highest rate since fiscal year 2002. Many of these guilty pleas are to lesser charges than the actual offense or offenses warrant, and thus there is already a reduction in the penalty built into this process for most offenders.

At points in his speech, Attorney General Holder seemed to blend references to federal sentencing and sentencing by the states. While Justice Department figures on state sentencing are less timely, the 2012 report by the Bureau of Justice Statistics, Prisoners in 2011, noted that over half of the nearly 1.4 million state prisoners were sentenced for violent offenses (53 percent), 18 percent were serving sentences for property crimes, and 17 percent were serving sentences for drug crimes. 

Just this week, Newark mayor and Senate candidate Cory Booker followed Holder, announcing his plan for criminal justice reform, featuring the elimination of mandatory minimum sentences for low-level drug offenders. Although some news reports noted that violent crime in Newark has been surging, Booker and the attorney general seem unable to face the fact that violent and repeat offenders have long been the vast majority of state prison inmates and the overall inmate population of the United States.

Drug enforcement is certainly an important part of the federal and state criminal justice systems, but it is not the center of gravity. Drug offenders are not "filling" either the federal or the state prison.

The attorney general also spoke as if federal judges do not already have and use discretion in sentencing drug offenders. As the Sentencing Commission report notes:

"In fiscal year 2012, judges in 18.2 percent of all drug cases determined that the applicable guideline range should be lowered because of the offender's minor or minimal role in the offense. In marijuana cases, this adjustment to the guideline range occurred 23.0 percent of the time. In contrast, courts found such an adjustment warranted in only 5.0 percent of crack cocaine cases. In another 6.6 percent of drug cases, the court determined that the applicable guideline range should be increased because of the offender's role in the offense as an organizer, leader, manager, or supervisor."

The federal sentencing process actually does adjust punishment to fit the offense. As noted, the system even makes allowances in offenses related to powder and crack cocaine. In fiscal year 2012, the commission explains:

"Powder cocaine offenders obtained relief from a mandatory minimum sentence at a higher rate (32.3 percent) through the statutory 'safety valve' exception to such sentences, which requires courts to sentence an offender without regard to any otherwise applicable mandatory minimum punishment when certain conditions are met. In contrast, 7.6 percent of crack cocaine offenders obtained this relief."

Why do crack cocaine offenders, —many with smaller quantities of illegal drugs and a majority of whom are African-American males—, receive so little relief from mandatory minimum sentences? Isn't this precisely what the attorney general cited as unjust in the present system? Here the Sentencing Commission also thought an explanation was in order, and it reported: "Overall, crack cocaine offenders continue to have, on average, a more serious criminal history than any other category of drug offender."

In a democracy, a conversation about the ways and means of justice should always be welcome. Too bad the attorney general's misleading rhetoric and shoddy statistics have us off to a rocky start.