Criminal justice experts on Monday applauded plans by U.S. Attorney General Eric Holder to reduce the number of nonviolent drug offenders in prison, while at the same time acknowledging that the vast majority of the 2.2 million people incarcerated in this country are held in state and local facilities and not federal prisons.
The hope, then, they continued, is that Mr. Holder's words and plans trickle down to state legislatures and local officials, where they could have more widespread impact.
In 2011, 1.2 million people were being held in state prisons. Local jails held 735,601, and the federal Bureau of Prisons held about 215,000 people.
In a 30-minute speech Monday to the American Bar Association's annual meeting in San Francisco, Mr. Holder outlined what he called a "fundamentally new approach" to criminal justice.
"While I have the utmost faith in -- and dedication to -- America's legal system, we must face the reality that, as it stands, our system is in too many respects broken," he said. "The course we are on is far from sustainable. And it is our time -- and our duty -- to identify those areas we can improve in order to better advance the cause of justice for all Americans."
While he listed a number of initiatives in his speech -- early release for elderly, nonviolent inmates; improving indigent defense; and reducing sentencing disparity based on race -- Mr. Holder spent the bulk of it addressing the need to reduce the number of nonviolent, non-gang-affiliated drug offenders in prison.
In 2010, the cost to incarcerate all prisoners in the United States was $80 billion. In Pennsylvania, alone, the state Department of Corrections budget this year is $1.9 billion.
During his speech, Mr. Holder referenced a number of states that have already begun moving to decrease state prison populations -- through alternative sentencing programs or changes in charging schemes.
Among them, he mentioned Pennsylvania, Ohio and Kentucky.
Those states, said University of Pittsburgh law professor David A. Harris, have been prodded into action, at least in part, by reduced state and local budgets.
"We cannot keep doing this," he said. "It's fiscally irresponsible."
What Mr. Harris called this country's "experiment with mass incarceration" has failed.
The passage of mandatory minimum sentences over the last few decades, Mr. Harris said, "was just a form of rhetoric among politicians, but it had disastrous consequences."
"We get to a point of diminishing returns," he said. "Eventually, almost all of [the nonviolent drug offenders] come out [of prison], and they and their families and their communities are worse off."
In his speech, Mr. Holder acknowledged that incarceration of violent offenders is necessary, but he said, "widespread incarceration at the federal, state, and local levels is both ineffective and unsustainable. ... [It] comes with human and moral costs that are impossible to calculate."
Among those costs, Mr. Holder pointed to a recent report that showed that black male offenders received sentences nearly 20 percent longer than white males convicted of similar crimes.
"This isn't just unacceptable -- it is shameful," he said. "It's unworthy of our great country, and our great legal tradition."
In response, he continued, he has directed a group of U.S. attorneys to examine sentencing disparities and put forth recommendations to address them.
Bruce Antkowiak, a former federal prosecutor and now law professor at Saint Vincent College, said he believes Mr. Holder's ideas will provide relief to individual U.S. attorneys.
A change in policy that permits more discretion will allow for more consideration of underlying facts and nuance of a case.
"The discomfort with [mandatory minimum sentences] has not just come from defense attorneys or prison officials," Mr. Antkowiak said. "There's a sense among a lot of people in the system that this kind of approach is welcome and timely."
Mr. Holder said much the same thing during his speech, noting that the "so-called war on drugs" is entering its fifth decade.
"[W]ith an outsized, unnecessarily large prison population, we need to ensure that incarceration is used to punish, deter and rehabilitate -- not merely to warehouse and forget."
Experts have said that without delving into individual cases, it is nearly impossible to determine how many of the 47 percent of federal prisoners being housed for drug offenses fall under Mr. Holder's target group of nonviolent, non-gang-related prisoners that might be affected by his ideas.
"There are probably fewer of those people than you might generally think," said Harry Litman, a former U.S. attorney in Pittsburgh.
He called Mr. Holder's plans "gutsy, laudable and progressive," but noted that most U.S. attorney's offices generally do not file charges against low-level, nonviolent, non-gang-affiliated drug sellers.
"There's no doubt there are many cases that are senseless, in which [mandatory minimums] don't serve any real coherent social policy, but I don't think it will bring a solution to overcrowding in general," Mr. Litman said.
He also noted that mandatory minimum sentences, while easily criticized, also led to a crackdown on mob crimes in the 1980s and '90s, as well as an easing of the crack cocaine epidemic.
Mr. Antkowiak said he believes it will take some time before there is a tangible impact on American prisons based on Mr. Holder's plans, but that there will be results.
The attorney general has directed the 94 U.S. attorneys to "develop specific, locally tailored guidelines -- consistent with our national priorities -- for determining when federal charges should be filed, and when they should not."
In addition, Mr. Holder has asked those same offices to create or update their districts' anti-violence strategies, something that David Hickton, the U.S. attorney for the Western District of Pennsylvania, said has long been underway in this area.
He cited as examples the Law Enforcement Agency Directors group, the Allegheny County Jail Collaborative and Youth Futures Commission.
Mr. Holder's speech, Mr. Hickton said, simply expands upon what has already been happening in U.S. attorney offices: prosecution, prevention and reintegration.
"I believe we can be both tough on crime and smart on crime," Mr. Hickton said. "It's very clear his focus is to give us more discretion in how we do justice in our district."
In terms of political support, Mr. Harris believes it will come from both sides of the spectrum -- whether for fiscally conservative reasons or for those supporting social justice.
Sen. Bob Casey, D-Pa., has previously co-sponsored a bill that would establish a bipartisan commission charged with undertaking an 18-month review of the criminal justice system.
"Sentencing reform is just one way in which our criminal justice system could be improved," he said in a statement. "As we strive to keep local communities safe, criminal justice reform will help us focus more resources on support for local law enforcement."
Rep. Tim Murphy, R-Upper St. Clair, said in a statement that drug abuse has a "devastating impact" on the individual, family and community.
"Early intervention and treatment is the most effective way to help someone overcome addiction, but we can't lose sight of accountability in the system. Minimum sentences were put into place because too many judges were allowing repeat offenders to return to the streets." he said.
"No one wants to go back to the old failed framework, so I look forward to reviewing the yet-to-be developed guidelines announced today by the attorney general and trust it will strike the appropriate balance because Western Pennsylvania knows all too well the destructive toll of illicit drug trade."
Paula Reed Ward: firstname.lastname@example.org, 412-263-2620 or on Twitter @PaulaReedWard. Molly Born contributed.