Holder did not say which prisoners might benefit from the coming changes. But he took note of the Fair Sentencing Act in 2010. That significantly but not wholly reduced the vast sentencing difference between convictions for crack and powder cocaine, a factor in the previous law that had had a tremendously disparate impact on African Americans. But the 2010 law did nothing for drug offenders sentenced before it took effect. Said Holder of the changes:
“Once these reforms go into effect, we expect to receive thousands of additional applications for clemency. And we at the Department of Justice will meet this need by assigning potentially dozens of lawyers—with backgrounds in both prosecution and defense—to review applications and provide the rigorous scrutiny that all clemency applications require.” [...]Estimates are that some 7,000 to 8,000 prisoners still serving time under the pre-2010 law would already have completed their maximum sentences if they had been convicted under the new law.
There are still too many people in federal prison who were sentenced under the old regime —and who, as a result, will have to spend far more time in prison than they would if sentenced today for exactly the same crime,” Holder said. “This is simply not right.”
With the exception of some who have been convicted of violent crimes while incarcerated, fair treatment for these inmates would be to offer a blanket clemency for all. That would fit perfectly with the sentiment of the 2010 law, if not its letter, and ought not, in a just world, raise anyone's hackles. But, of course, if the administration were to take this approach, the shrieks from the right (and from other fans of draconian drug sentencing) would probably be heard all the way to Proxima Centauri.
There is more to read about this below the fold.
Dartagnan has written in his excellent post on the subject:
The last three Presidents have been admitted drug users. Wikipedia has even compiled a list of admitted cannabis users in the U.S. Congress and Senate. Based on sheer statistical odds, at least 50% of the current makeup of Congress and the Senate are former or current users of illegal drugs. The real figure is probably quite higher. A complete overhaul of these insane, discriminatory, antiquated, reactionary drug laws is long, long past overdue. Many states are beginning to take the hint, as has the Justice Department. However, the Presidential Pardon power would be the most visible manifestation of the need to get rid of these laws.
But no president, no attorney general can fix all that is wrong with our sentencing laws, even just our drug-sentencing laws. That would take the Senate, House and state legislatures. And that would take a much-needed attitude adjustment among our elected leaders.
The problems with sentencing injustices is huge. Here's just one example. Last November, the American Civil Liberties Union issued a report, A Living Death: Life without Parole for Nonviolent Offenses. It is grim reading except perhaps for sadists.
For 3,278 people, [life without parole was the sentence for] nonviolent offenses like stealing a $159 jacket or serving as a middleman in the sale of $10 of marijuana. An estimated 65% of them are Black. Many of them were struggling with mental illness, drug dependency or financial desperation when they committed their crimes. None of them will ever come home to their parents and children. And taxpayers are spending billions to keep them behind bars.The ACLU report goes on:
Prosecutors, on the other hand, have immense power over defendants’ fates: whether or not to charge a defendant with a sentencing enhancement triggering an LWOP sentence is within their discretion. In case after case reviewed by the ACLU, the sentencing judge said on the record that he or she opposed the mandatory LWOP sentence as too severe but had no discretion to take individual circumstances into account or override the prosecutor’s charging decision.Expansive clemency cannot remedy the massive injustice of sentencing policies that have put the U.S. at the head of all the nations of the world when it comes to per capita incarceration, 760 per 100,000 people, according to the International Centre for Prison Studies. But it would be a good start.
As striking as they are, the numbers documented in this report underrepresent the true number of people who will die in prison after being convicted of a nonviolent crime in this country. The thousands of people noted above do not include the substantial number of prisoners who will die behind bars after being convicted of a crime classified as “violent” (such as a conviction for assault after a bar fight), nor do the numbers include “de facto” LWOP sentences that exceed the convicted person’s natural lifespan, such as a sentence of 350 years for a series of nonviolent drug sales. Although less-violent and de facto LWOP cases fall outside of the scope of this report, they remain a troubling manifestation of extreme sentencing policies in this country.”