So You Want to Abolish Mandatory Minimums for Small-Time Drug Dealers

It's a tall order, and probably high time. Roughly half of the 219,000 inmates currently in federal lock up are serving time on drug charges. To go on cramping a national prison system that's already over capacity by 40 percent is something Attorney General Eric Holder says is no longer sustainable. Holder will announce today his plans for a sweeping overhaul of Justice Department policy that will spare petty and otherwise peaceable drug offenders of lengthy mandatory-minimum sentences.

The proposals have been in the works for months, the Washington Post reports, and in no way do they lessen the role of brute-force incarceration within the justice system. The idea isn't to reverse the fate of those criminals and drug kingpins who might really and truly deserve to molder behind bars for life. Rather, the plan will instruct federal prosecutors to stop hitting mere garden variety drug dealers with "excessive" prison terms and start handing out sentences more appropriately suited "to their individual conduct," according to excerpts from Holder's prepared remarks this afternoon at the American Bar Association in San Francisco.

Time will tell if that actually plays out or not. Holder has a history of backsliding, to put it mildly, especially when it comes to dumb shit like weed. Remember when he said the Feds would stop busting up medical pot shops, but then the DEA kept smashing up cannabis dispensaries anyway?

What we know right now is that more of those folks who bear no links to big-fish narco organizations, cartels, and gangs, but who nevertheless sit in federal limbo, will see their low-level cases redirected to individual states, whose courts can then, say, enroll certain of these offenders in drug treatment and community service programs. Holder's plan also allows for the release of certain elderly, non-violent inmates sooner rather than later.

But the real kicker is how this reform package shifts the way the law looks at the amount of a given controlled substance in a given indictment. Federal prosecutors will now be able to exclude specific quantities of drugs that are attached to specific cases. Drug-based federal indictment processes, of course, are more often than not inextricably bound to the amount of drugs involved. Think of it this way: If you're caught carrying five kilograms of cocaine and a federal judge rules that you were intending to sell the stuff, there's a 99 percent chance you will face an automatic mandatory minimum sentence of 10 years. So help you God.

But seeing as Holder is signaling that judges and prosecutors have the option moving forward to omit substance amounts in your case, the scales of justice will be recalibrated to exercise a lot more discretion--and that's assuming the crime with which you've been charged isn't traced to any violence or weapons or gang activity, and also that you simply can't afford to buy your way out of the jam. (Face it, you cant.)

This is a pretty huge shift in both the letter and spirit of American criminal proceedings involving illegal drugs. And it carries considerable weight in Holder's effort to undercut a mandatory-minimum model that by its very nature puts severe limits on a judge's ability to dole out punishments appropriately suited to crimes. It would do away with the old standard-operating procedure, one that came into favor in the 80s as the US goverment ramped up its war on drugs and that, as such, became the prime driver behind the 800-percent spike in domestic prison populations over the past three decades.

So was Holder feeling the heat? Is he feeling the heat? Maybe, possibly. The new prison initiative, according to Politico, not only stands to save billions of dollars, but shores up "bipartisan momentum" at the state level (and also in Congress, though to a lesser extent) to distance criminal justice in the US from a lot of the heavy-handed anti-crime bills adopted throughout the 80s and 90s:

As fear of violent crime has dropped precipitously in recent years, critics of lengthy federal sentences are trying to capitalize on the intensifying pressure on the federal budget to persuade Republicans and conservative Democrats to consider measures that might have been attacked a couple of decades ago as soft on crime.

What's more, Politico adds, Holder is expected to signal this afternoon that the President himself, a guy who in his beach-laden young adult years blazed pretty much all of Hawaii under the table, and later dabbled with the white pony, is "willing to make some effort to craft and support legislation" to reinstate judges' discretion in some of those cases that are currently the preserve of mandatory minimums.

Again, these are words, not actions. It's a tall order, so maybe don't go holding your breath that today marks a true watershed moment in the ongoing effort to thin out a cramped national jail system, even if it is high time. And likewise don't hold your breath that we'll see some of that locked-up startup potential unleashed, or that some of those non-violent unfortunates not spared of a grueling sentence won't just go on getting high.

@thebanderson