Eric Holder's Reforms: Justice Delayed

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(The Root) — When I first heard Attorney General Eric Holder's plan to change Justice Department charging policy regarding low-level, nonviolent drug offenders, my initial reaction was that the Obama administration finally was taking an affirmative move that would benefit the black community, just as President Obama had for other groups — women, gays and immigrants — whose strong support were key in his election victories.

The Holder announcement is a step in the right direction. Rarely, if ever, has the top law-enforcement official in the country acknowledged that the U.S. criminal-justice system is weighted heavily against minorities and the poor and needs to be fixed. The attorney general is modifying federal prosecutors' charging policies so that "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." 

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Sounds like progress.

But the facts are that several states, some led by Republican governors and legislatures, have taken the lead on this issue. And the rate for which blacks have been locked up in federal and state prisons and local jails has been dropping over the past decade.

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Few government policies have decimated the black community like the escalation of incarceration started in the early 1970s and the launch of the war on drugs in the 1980s. Since then, the U.S. prison population has skyrocketed from 500,000 to more than 2.3 million, according to the Bureau of Justice Statistics. The cycle of arrest-incarceration-rearrest destroys families and whole neighborhoods. African Americans and the poor in particular are hit hard by federal and state criminal-justice policies. Currently, according to the Bureau of Justice Statistics and the U.S. Census Bureau, blacks account for 13 percent of the U.S. population but 38 percent of federal and state inmates. Whites are 63 percent of the U.S. population and 34 percent of inmates.

But the impact of the changes Holder announced likely will have little impact on the outdated policies of the federal system. And they pale compared to criminal-justice overhauls in some states, including New York, Kentucky, Kansas and New Jersey, all of which have seen declines in their state prison populations after they eased mandatory minimum sentences and, in some instances, expanded diversion programs.

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For instance, in the early 2000s, Kansas made probation and drug treatment mandatory for people convicted for a first or second time of simple drug possession. In 2011 alone, 18 states passed laws that limited the use of incarceration for specified offenders, eliminated certain drug-policy sentencing disparities and eased mandatory minimum sentencing practices, according to a February 2013 report from the Sentencing Project. In Texas and Arkansas alone, a combination of increasing drug treatment as an alternative for nonviolent offenders and broadening parole guidelines reduced the states' prison population by more than 6,000 last year.

Meanwhile, according to the Sentencing Project report, the incarceration rates for blacks has declined, significantly so for black women. From 2000 to 2009, the incarceration rate for black women dropped by about 31 percent. At the start of that decade, black women were imprisoned at a rate six times higher than for white women. By the end of the decade, the rate had dropped to 2.8. For black men, the incarceration rate dropped by almost 10 percent. In 2000, black men were 7.7 times more likely to be incarcerated than white men. By 2009, they were 6.4 times more likely to be incarcerated than white men. 

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Over the same 10 years, according to the report, the incarceration rate for white women increased by about 47 percent and for white men by 8.5 percent.

Like many advocates who have been working to change mandatory-minimum sentencing laws, Julie Stewart, president of Families Against Mandatory Minimums, called the Justice Department policy changes a step a right direction. But Stewart told the Washington Post that "what's being proposed here is very modest."

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Individuals charged in the types of cases Holder described in his announcement account for about 10 percent of federal criminal cases. Nonviolent, low-level drug offenders — for example, someone arrested for possession of marijuana or possession with intent to distribute marijuana — usually don't become federal offenders. They usually are charged by state prosecutors.

And those low-level, nonviolent offenders without ties to gangs or drug organizations that Holder says should be given a break? Well, ask many police investigators, and they'll tell you that drug dealers usually get their products from the same few sources. If they do that regularly, in the eyes of detectives, that makes those dealers a part of a drug organization.

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At least the Obama administration has joined a growing bipartisan chorus that says the U.S. criminal justice system needs to be overhauled. In remarks to the American Bar Association, Holder said, "A vicious cycle of poverty, criminality and incarceration traps too many Americans and weakens too many communities … Many aspects of our criminal justice system may actually exacerbate these problems rather than alleviate them."

This new administration position catches up Holder and President Obama to previously announced positions taken publicly by the likes of former House Speaker Newt Gingrich (R), Grover Norquist, the conservative founder of Americans for Tax Reform, and the largest association of unions that represent corrections officers. They and others joined with the NAACP in 2011 to call on state legislatures to change corrections policies and shift state funds from corrections to education.

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Hilary Shelton, director of the NAACP's Washington bureau, is pleased that the attorney general staked out this public position. "Let's not belittle this at all," Shelton says. "Talk to some of the mothers whose children have been locked away for years and years for a crime that does not measure up with the sentence. It means a lot to them. But does more need to be done? Of course."

Keith Harriston is a former reporter and editor at the Washington Post, where he covered public safety policy. He teaches journalism at Howard University, where he edits www.hunewsservice.com. 

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