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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.

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“For unknown and unknowable reasons,” Bennett wrote, “federal prosecutors have been applying massive numbers of § 851 enhancements in many districts and not in others.” In his own Northern District of Iowa, where 79 percent of eligible defendants get such added punishment, a drug offender is “2,532% more likely to receive it than a similarly eligible defendant in the bordering District of Nebraska.” (Many of these defendants, he added, are arrested on drug conspiracies and could actually be charged in Nebraska.) The arbitrariness is striking within states as well: in Tennessee’s Eastern District, “offenders are 3,994% more likely to receive a § 851 enhancement” than in the Western District. In other words, based on geography alone, some defendants will spend decades longer in prison than others for virtually identical drug crimes. Bennett likened it to a “Wheel of Misfortune” that has been allowed to spin unchecked for decades. “It has added thousands of years of arbitrarily inflicted incarceration on drug defendants, most of whom are non-violent drug addicts,” he wrote.

Of course, in many ways, such disparities fit into the wider landscape of unfair punishment that Holder invoked in his speech. The use of mandatory minimums, enhanced or otherwise, have so disproportionately devastated communities of color that real fairness would require abolishing them entirely. But given that such harsh punishments for drug crimes have been kept in place, would the Justice Department’s new guidelines actually make them fairer? That will depend, ultimately, on whether federal prosecutors decide to follow them. After all, as Bennett wrote, the Wheel of Misfortune is spun by “more than 4,500 Assistant U.S. Attorneys nationwide.”

For former federal prosecutors like Mark Osler, a law professor at the University of St. Thomas in Minneapolis, this cuts to the heart of the problem. In an editorial bluntly titled “Why Eric Holder’s drug policy changes won’t work,” Osler dismissed as “myth” the notion that a directive from Washington would have a sweeping impact on drug sentencing. “The truth is that federal prosecutors who want to charge harshly will find a way to do so,” Osler wrote. (He also noted, “prosecutors everywhere use mandatory minimums to pressure low-level defendants to flip and provide information on others, and that is unlikely to change.”)

Indeed, for any number of other reasons—from a particularly punitive sense of justice to crass professional gain—prosecutors routinely use all kinds of enhancements to lengthen sentences, and neither judges nor Holder’s recommendations have much power to interfere. The advocacy group Families Against Mandatory Minimums, which maintains prisoner profiles on its website, offers example after shocking example of what this can mean in human terms. “This man doesn’t deserve a life sentence, and there is no way that I can legally keep from giving it to him,” one judge wrote in the case of a nonviolent drug offender.

Angela J. Davis, author of  Arbitrary Justice: The Power of the American Prosecutor, points to another problem: lack of transparency. “Charging and plea bargaining decisions are made behind closed doors, and prosecutors are not required to justify or explain these decisions to anyone,” she wrote in The New York Times earlier this year. Bennett argues that this “incredible cloak of secrecy” must be lifted if Holder’s memo is to mean anything. “It’s really going to depend on the amount of scrutiny given to those on the front line.”

In the midst of an ongoing “war on drugs,” however, those on the front line will always have an incentive to send people to prison who don’t belong there—and any fundamental rethinking of our criminal justice system would require Congress, not merely the Justice Department, to admit this. In the meantime, there is a tool at the administration’s disposal that, as Osler pointed out, could have a sweeping and immediate impact: “The pardon power. The president can, and should, shorten the sentences of those who have been oversentenced for drug crimes.”