Federal prosecutors will begin ignoring mandatory minimum sentences established by Congress for non-violent drug crimes, Attorney General Eric Holder is expected to announce Monday during an American Bar Association meeting in San Francisco.
Instead of inflexible penalties for non-violent drug offenders, the defendants "will be charged with offenses for which the accompanying sentences are better suited," Holder will reportedly say, according to a copy of the speech circulated by the Justice Department.
The policy change is a fulfillment of a campaign promise made by then-candidate Barack Obama in 2008. At the time he promised, we "[w]ill immediately review [mandatory minimum] sentences to see where we can be smarter on crime and reduce the ineffective warehousing of nonviolent drug offenders," according to Politfact.
In 2010 the Fair Sentencing Act, signed into law by Obama, did lower the mandatory minimum penalties for crack cocaine. But the warehousing continued. According to Holder's address, the federal prison population has increased almost 800 percent since 1980.
The bar association has lobbied for reform to mandatory minimum penalties in the past.
"Mandatory minimum sentences have resulted in excessively severe sentences," wrote then-ABA President Karn Mathis in a 2007 letter to members of Congress. "This is a one-way ratchet upward."
Some advocates are still surprised by the timing.
"It's hard to say why now," Marc Mauer, executive director of the Sentencing Project, told U.S. News.
"I think it's a real breakthrough," said Mauer, who has worked on sentencing policy for 30 years. The political climate has shifted so dramatically, he said, that broad push-back may not happen.
Mauer expects most prosecutors to abide by Holder's new policy, but said "different prosecutors may interpret the guidance in different ways."
Families Against Mandatory Minimums, a group that documents legal horror stories and advocates for policy change, hailed the change as a long-awaited pivot.
In his speech, the attorney general will say "while the aggressive enforcement of federal criminal statutes remains necessary, we cannot simply prosecute or incarcerate our way to becoming a safer nation." Mandatory minimums, he will say, "breed disrespect for the system."
Samuel Buell, a law professor at Duke University, noted that the change reflects the common practice of offering plea deals with lesser penalties.
"This is a welcome move to bring not only flexibility but, ironically, more consistency to federal drug sentences," Buell said. "The truth is that prosecutors in several big city U.S. Attorneys' offices who well understand the difference between serious drug cases and small ones have for years been using this legal tactic for avoiding mandatory minimums in their plea agreements, more or less under the radar."
Marijuana Majority Chairman Tom Angell, formerly associated with the group Law Enforcement Against Prohibition, issued cautious praise for the policy change.
"These proposals will allow some people charged with drug offenses to have opportunities to put their lives back together sooner and will save taxpayers some money that is now being wasted putting human beings in cages for no good reason," Angell said in a statement. "The real value of these proposals will be in the implementation, which drug policy reform advocates have good reason to be wary about. For example, despite a 2009 Justice Department memo urging U.S. attorneys not to go after marijuana businesses that are legal under state law, more state-legal medical marijuana providers were shuttered by federal actions during the first term of the Obama administration than were closed during George W. Bush's two terms."