Some Movement in the Real Change that Might Happen Out There

March 18, 2014
By Hanging Out with Carl Gunn


  • The Department of Justice is supporting the proposed amendment to the drug guideline reducing base offense levels by 2 levels.
  • The Department has directed prosecutors not to oppose requests to reduce offense levels in sentencings even now, before the new guideline takes effect.
  • The Department’s written comments and testimony by the Attorney General explaining the Department’s support contain more general comments about the overuse and expense of incarceration and the greater cost-effectiveness of alternatives; these comments and this testimony can be used in sentencing arguments in any type of case.


A couple months back, I put up a post about some changes in drug sentencing percolating out there on all three government fronts. (See “Is There Some More Real Change Going to Happen Out There?” in the link at the right.) One of the potential changes I pointed out was a potential amendment to the drug guideline which would reduce drug offense levels by 2 levels pretty much across the board.

Well, there’s been some further developments on this. They’ve been getting publicized on multiple listserv’s and e-mail chains over the last week, so it’s going to be old news for some – maybe even most – of you, but I thought I’d note it in this blog for those who haven’t seen it elsewhere. One of the new developments – which isn’t necessarily a surprise – is that the Department of Justice is expressly supporting the proposed amendment to the drug guideline. It first expressed this support in written comments on this year’s guidelines amendments which are attached here (see pages 16-17) and subsequently expressed its support in testimony by Attorney General Holder before the Sentencing Commission last week. The Attorney General’s initial written statement which he read in his testimony is reproduced in the Department of Justice press release attached here.

The Department of Justice support makes it even more likely that the Sentencing Commission will approve the proposed amendment, though we won’t know for sure until next month. But there’s a second new development which is a little more surprising. The press release reproducing the Attorney General’s testimony that’s attached above notes that the Commission is expected to vote on the proposed amendment in April and that “[u]ntil then, the Justice Department will direct prosecutors not to object if defendants in court seek to have the newly proposed guidelines applied to them during sentencing.” And e-mails I’m seeing on some of the e-mail chains I’m on are reporting that many U.S. Attorney offices are already implementing this policy.

Like I said, this will be old news to many, if not most, of you. But I thought I’d also point out some nuggets in the Department of Justice’s written comments on the amendment and the Attorney General’s testimony that could have broader application. It suggests a more general concern that our criminal justice system is using incarceration too much and reasons why it should be getting used far less than it is. Here’s some of what I found:

In the written Department of Justice comments:

• “[O]ur crime reduction strategies have been extremely costly and have caused incarceration rates to skyrocket, so much so that our nation now has the largest rate of imprisonment in the world.”

• For those who don’t care about people, but do care about money:

“The recent budget crisis has magnified this reality and has made clear that such extensive use of imprisonment as our first line of defense against crime is unsustainable. State and federal governments spent a combined $80 billion on incarceration in 2010 alone. The federal prison and detention budget has been increasing steadily, while other public safety spending has been shortchanged. This pattern of funneling more resources into prisons and away from other crucial justice investments, such as investigators and prosecutors and support for victims and reentry programming, has persistently impacted the allocation of funding among the Department’s various activities. It has become clear that we must find ways to control federal prison spending in order to better focus limited resources on combating the most serious threats to public safety.”

• “The socioeconomic realities of life after prison have had particularly devastating effects on disadvantaged populations and communities of color.”

• “Justice Reinvestment Initiative efforts have decreased corrections spending in many states by redirecting some resources away from expensive imprisonment and towards more cost-effective, community-based efforts. Importantly, instead of compromising public safety, many states have seen drops in recidivism rates and crime rates overall as their prison populations have declined.”

Then in the Attorney General’s testimony:

• “Although the United States comprises just five percent of the world’s population, we incarcerate almost a quarter of the world’s prisoners.”

• “In recent years, no fewer than 17 states – supported by the Department’s Justice Reinvestment Initiative, and led by officials from both parties – have directed significant funding away from prison construction and toward evidence-based programs and services, like supervision and drug treatment, that are proven to reduce recidivism while improving public safety. Rather than increasing costs, a new report – funded by the Bureau of Justice Assistance – projects that these 17 states will actually save $4.6 billion over a 10-year period. Many have already seen drops in recidivism rates – as well as overall crime rates – even as their prison populations have declined.

These more general comments go beyond this particular drug guideline amendment and go beyond drug sentences. They suggest a more general recognition that prison sentences are too long and too common. They focus on alternatives to incarceration that are not just as, but more, effective than prison. They highlight that moving away from prison and toward alternatives is a budgetary issue as well as a human issue. So think about using these more general points in all your cases, not just the specific support for the drug guideline in your drug cases.