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Is President Obama truly ready to release thousands of prisoners?

My American Forum Interview

With Attorney General Eric H. Holder 

by Douglas A. Blackmon

Attorney General Eric H. Holder made some remarkable comments to me recently about the inequities of the American system of justice, and strongly suggested that the Obama administration is finally ready to directly address that more than 2.2 million people are incarcerated in the U.S.–25% of all prisoners in the world–and that more than 10,000 non-violent federal inmates sentenced at the height of the drug war are serving sentences far longer than they would receive if convicted under current U.S. law.

  • Holder said there are “probably thousands” of Americans imprisoned in the U.S. serving sentences unjustifiably long sentences.
  • He acknowledged the growing evidence that substantial numbers of people are convicted of crimes they didn’t commit, and called this reality the “ultimate horror” of our justice system.
  • Most dramatically, the attorney general–the highest ranking law enforcement officer in the U.S.–strongly suggested that a wave of presidential commutations and judicial reviews for non-violent drug offenders may be coming from the White House and federal courts in the months ahead.

“The president is willing to do these kinds of things,” Holder said during a taping of American Forum, a public television program I host from the University of Virginia’s Miller Center and carried by about 90 PBS stations around the country.

WATCH THE INTERVIEW HERE: http://millercenter.org/events/2014/a-conversation-with-eric-holder

If it comes to pass, the possibility that Holder and President Barack Obama may be ready to more directly confront mass incarceration will be welcome news to many Americans. The problems of “mass incarceration” and an urgent imperative that they be addressed has become an article of faith among liberals. In recent months, many conservatives and libertarians have joined the bandwagon–often motivated by the staggering cost of imprisoning such a huge number of citizens. Polling in recent years indicated that at least half of all Americans believed too many people were in prison, and that Americans on average felt at least 20% should be released.

The administration has been harshly criticized for not moving faster on this issue in the past five years–especially amid evidence that African-American men are disproportionately imprisoned. “Although both the president and Attorney General Holder often say they want to encourage frank dialogues about race, we’ve seen relatively little in terms of … actual initiative and leadership,” said Michelle Alexander, author of the bestselling book on mass incarceration The New Jim Crow, in an interview last year.

But a serious effort to set thousands of inmates free is also going to force open a conversation that few Americans–and certainly not our national leaders–have been willing to confront. That’s because beyond the approximately 12,000 federal prisoners serving sentences for drug crimes that clearly are indefensibly long, there are vastly larger numbers of inmates in state and local prisons and jails who by similar standards should also be set free. That 20% of all prisoners who poll respondents said should be set released, for instance, would add up to nearly half a million people.  On top of that, there are approximately 600,000 prisoners released each year at the normal end of their incarcerations. That conjures the vision of  potentially 1 million or more ex-cons returning to the outside world in the not too distant future.

The conflict that will inevitably develop around any mass release effort is driven by this:  some of those prisoners were innocent of any crime, but the vast majority did in fact break the law. That matters, even if the law or penalty looks unjust, or absurd, in some eyes. Because when most of those inmates were imprisoned, their fellow Americans, regardless of race, seemed to overwhelmingly support the most harsh sentences short of death. Three-strikes-and-you’re-out laws and mandatory requirements of life in prison for many non-violent offenders were the rage among voters in the 1980s and 1990s. (The state of Massachusetts passed a 3-strikes law only a little more than a year ago, and it was signed into law by an African-American governor.)  Attorney General Holder himself tells a story of when he was a young federal prosecutor in Washington D.C. promoting inner city programs aimed at reducing the number of young black men headed to prison. Many black residents in crime-blighted neighborhoods told him his efforts sounded like a very idea to pursue, but that in the meantime would he please go ahead and arrest all the hoodlums outside the building right then and take them away.

Now that crime rates have been plummeting for more than a decade, many Americans are suffering a mass incarceration hangover. After binging on prison sentences and boot camps for two decades, they have doubts about the support they offered for so harsh a system back when police raids on drug dealers were a nightly staple of local television newscasts. Nonetheless, imagine the conversations that will occur as a million ex-prisoners return to communities that already offer woefully little support for ex-cons or programs designed to help former prisoners avoid getting in trouble again. The “felon” status for prisoners wouldn’t be going away for these men and women in either of the new initiatives described by Attorney General Holder. Prospects for jobs or bank loans will be slim. The toll of years in prison will be obvious. And as it has been for generations, most Americans won’t have much sympathy for anyone explaining their absence from the workforce by saying they just finished a long stretch in the penitentiary.

It may also be extraordinarily difficult for either President Obama or federal judges to sort out which of these thousands of federal prisoners are fully victims of an era of over-punishment, versus others whose sentences look too harsh on paper but in reality were the result of law enforcement officials using whatever means possible to remove truly bad actors from the streets.

And finally, perhaps the biggest question of all, who will represent these thousands of prisoners in their petitions to President Obama or through the courts? The vast majority of prisoners have no resources of their own to hire a lawyer. Most probably had no real representation when they accepted one of the plea bargains that puts most prisoners in jail. If they did have a lawyer, they haven’t had contact with that attorney since the day they went into the system—back in 1988 or 1992 or 2001 or some other distant year hundreds or thousands of clients ago, and that their public defender now barely remembers.  Few inmates have family support systems that could find or pay for a lawyer. And unless an inmate is on death row—whose residents receive the overwhelming majority of every dollar spent for indigent defense in the U.S., the availability of pro bono lawyers for most incarcerated Americans is virtually nil.

So the question will be: are private attorneys across the country—thousands of them—willing to take on this enormous task, presumably on their own dime?However complicated all this may be, Holder made it clear in my interview that he and President Obama plan to do much more in the administration’s second term to start the ball rolling by facilitating the possible release of larger numbers of prisoners. That effort includes support for legislation currently pending in Congress to create a new, faster avenue of judicial review for federal prisoners serving jail terms longer than what would be imposed under current U.S. law.  If passed, that measure would address what is widely viewed as a gaping hole in the administration’s highest profile effort so far to address mass incarceration: the 2010 Fair Sentencing Act.  That law greatly narrowed the disparity between sentences mandated for offenses involving crack cocaine—a drug often associated with the very poor and African-Americans—and those with powder cocaine—a form of the same drug more used by whites and the affluent. But the 2010 changes weren’t retroactive—meaning about 12,000 non-violent prisoners given very long sentences at the height of the drug war got no relief. The total number of federal prisoners serving sentences related to crack cocaine approaches 30,000.

“We put in place some pretty draconian sentencing measures,” Holder told me. “Where people who were not engaged in the violent distribution of drugs ended up with ten, twenty, thirty [years]–lifetime sentences. And without a violent component to those crimes it seems to me that some people are serving jail sentences that are far too long and that don’t serve any particular law enforcement purpose.”

More startling than Holder’s support for allowing federal judges to more easily review—and shorten—sentences, were his statements suggesting a faster process for seeking direct presidential intervention and a blunt acknowledgement that the justice system makes many errors.

“With the laws that have been passed and the laws that are potentially going to be passed … there is going to be, I think, a greater capacity, a greater legal capacity for these kinds of claims to be raised,” Holder said.

“Having laid the foundation in the first term … the president, yeah, is going to be more willing to look at those things,” Holder said. “But … for him to look at them we have to get them into the system and to him, and that is a process that is often times a long one. That is why I think the passage of this legislation is so important so that someone can raise those kinds of concerns and have an adjudication done by a district court judge. Perhaps not agreed to by the government, perhaps challenged by the government, but have a judge decide whether or not a person can be released. But I think both of those should be operating.”

Holder said the Department of Justice would begin actively encouraging lawyers to identify prisoners whose sentences should be shortened and to file petitions for White House commutations.

“We have…to make people who are incarcerated aware of that avenue,” Holder said,   “So I’ve asked members of the private bar to somehow engage with the people who are in prison so that the appropriate papers get filed, are put into the system, and ultimately the White House counsel’s office, and ultimately on the president’s desk.”

Asked about the attorney general’s comments, a White House spokesman referred to President Obama’s statement in December accompanying the commutation of eight prisoners who had received long sentences for non-violent drug offenses. The president said then that “thousands of inmates” are imprisoned under an “unfair system” of sentencing requirements that are no longer applied in new prosecutions. http://www.whitehouse.gov/the-press-office/2013/12/19/statement-president-clemency

A few day after Holder’s comments to me, Deputy Attorney General James Cole elaborated on the new approach in a speech to the New York State Bar Association, asking lawyers to help identify inmates who may deserve sentence reductions and filing for commutations or court reviews on their behalf.  In the American Forum interview, Holder also strongly endorsed the legislation pending in congress to create a faster, channel for judges to review sentences. Federal prosecutors around the country have already raised some concerns about how far this effort might go. One slightly stunned regional U.S. Attorney told me, “This could be a huge headache for us.”

All this possible activity comes at time when evidence is mounting that far more innocent people are falsely convicted in U.S. courts than was long imagined.  DNA based exonerations of death row inmates have rattled confidence even in what are supposed to be the most well-resourced and closely monitored proceedings in the system, because the life of the defendant is at stake.  Earlier this week, an annual report from the National Registry of Exonerations, compiled by the University of Michigan Law School and the Center on Wrongful Convictions at Northwestern University School of Law, said nearly 90 falsely convicted prisoners were cleared of their crimes in the U.S. during 2013—more than in any previous year.  A total of more than 1,300 exonerations have occurred over the past 25 years. http://www.law.umich.edu/special/exoneration/Documents/Exonerations_in_2013_Report.pdf

Citing President Obama’s commutations in December (http://www.whitehouse.gov/the-press-office/2013/12/19/president-obama-grants-pardons-and-commutation) Holder said in the American Forum interview, which began airing on Feb. 9, that the White House is prepared to use its executive power more forcefully in the second term in similar cases.

Holder, the nation’s first African-American attorney general, said the recent commutations should be interpreted as a signal that the president is ready to move on even larger numbers of such cases.

“The president has indicated a willingness and has demonstrated that willingness by those commutations that he granted,” Holder said.

The Attorney General’s comments came during an interview that has already triggered a small frenzy of news coverage in the New York Times, Politico, major networks and papers all over the U.S.  Those headlines were mostly about Holder’s surprise promise to make it possible for banks to do business with newly legalized marijuana sellers in Colorado and Washington, his criticism of former Defense Secretary Bob Gates’s book and comments on whether NSA leaker Edward Snowden could get a plea deal from the U.S.

But reporters largely overlooked what may have been some of Holder’s most significant statements about the mass incarceration. Holder defended the U.S. judicial system as well-intentioned and ultimately reliable, but also said too many Americans have been too harshly punished for non-violent crimes, or for crimes they didn’t commit.

“Some people are serving jail sentences that are far too long and that don’t serve any particular law enforcement purpose,” Holder said. “My guess would probably be thousands if you look at the totality of our prison population.”

Holder called the growing evidence of false convictions of innocent Americans “the ultimate horror.”

“The notion that we have innocent people serving time … that’s why we have pushed, for instance, to make sure that that the indigent defense system that we have in place…is much more effective,” Holder said. “We have to really as a society say that is simply something that is unacceptable…As good as our system is, it is ultimately a system that is filled with men and women who are well-intentioned, but who make mistakes.”

If big changes are truly–finally–coming on the issue of mass incarceration, this isn’t going to be a simple process.  Throwing open the prison cells will only be the beginning.

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