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Can the Obama Admin Actually Fix Our Broken Criminal Justice System?

Obama’s attorney general promised a new approach to criminal justice—but prosecutors can still block meaningful change.

On Monday, August 12, the day Attorney General Eric Holder announced “a fundamentally new approach” to the criminal justice system in his speech before the American Bar Association in San Francisco, US District Court Judge Mark W. Bennett was in his office in Sioux City, Iowa, drafting a sentencing opinion in a drug case. An outspoken critic of mandatory minimums [see “ Imposing Injustice,” November 12, 2012], Bennett is known for writing unusual opinions that criticize the sentences he must often hand down. “It’s about trying to make the system fairer,” he says, “not just for the defendant in front of you, but for others.”

The defendant in this case, a 37-year-old black man named Douglas Young, had caught a rare break. He’d pleaded guilty to two charges involving twenty-eight grams of crack cocaine—an amount sufficient to trigger two five-year mandatory minimum sentences. But he had previously been convicted on another crack charge, in Chicago, when he was just 20 years old. This single offense, seventeen years ago, meant not only that prosecutors could have doubled Young’s mandatory minimum sentence, but also that he could have received a maximum sentence of life without parole.

Thanks in part to a good defense attorney, who successfully argued that this single drug conviction did not constitute a criminal past, Young won’t spend his life in prison. Nonetheless, Judge Bennett wrote, “this case presents a deeply disturbing, yet often replayed, shocking, dirty little secret of federal sentencing: the stunningly arbitrary application by the Department of Justice (DOJ) of § 851 drug sentencing enhancements.” Such extra punishments—also known as ”recidivist enhancements,” and often used to scare a defendant into pleading guilty—“at a minimum, double a drug defendant’s mandatory minimum sentence,” Bennett wrote. They “are possible any time a drug defendant, facing a mandatory minimum sentence in federal court, has a prior qualifying drug conviction…o matter how old that conviction is.”

Holder did not mention sentencing enhancements in his August 12 speech. But in a Justice Department memo issued that same day, which instructed federal prosecutors to avoid mandatory minimums, the attorney general recommended that they also stop applying recidivist enhancements, “unless the defendant is involved in conduct that makes the case appropriate for severe sanctions,” such as a history of violence or leading a “criminal organization.”

Decades have passed since Congress created such “tough on crime” enhancements as part of Nixon’s “war on drugs,” yet this was the first time Justice had bothered to specify, in any detail, how they should be used. Although Bennett thinks Holder’s criteria for using sentencing enhancements are still too broad—“You could drive an armored truck through any one of them,” he says—they’re at least a step in the right direction, given the arbitrariness of their earlier use. As he wrote in his sentencing opinion in Young’s case: “I have never been able to discern a pattern or policy of when or why a defendant receives a § 851 enhancement in my nearly 20 years as a U.S. district court judge who has sentenced over 3,500 defendants, mostly on drug charges.”

To grasp the consequences of such a lack of policy, Bennett sought out whatever data existed. A 2011 study by the US Sentencing Commission had found “a lack of uniformity” in the application of sentencing enhancements, so Bennett requested the raw data in order to delve deeper into the disparities. What he found when he crunched the numbers was “jaw-dropping,” he wrote. The commission’s conclusion had been a “gross understatement.” Bennett’s final seventy-five-page opinion, complete with charts and graphs, is not just a scathing critique of harsh and nonsensical punishments; it also starkly illustrates the challenges that the Justice Department confronts if it is truly sincere about reining in unfair drug sentences.