Urban Wire AG Holder’s legacy: Pushing prosecutorial reform and stemming the tide of federal prison growth
Ryan King
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The news that Attorney General Eric H. Holder, Jr. is resigning provides an occasion for reflection about the legacy he leaves behind. Holder used his role as the nation’s chief law enforcement officer to share a vision of a federal criminal justice system that can be both fair and equitable, while also protecting public safety.

Holder had an appreciation for the role that prosecutors should be playing in addressing a federal prison system that has grown by a factor of eight since 1980. Recent research identifies prosecutorial practice as a leading driver of prison population growth in recent decades.

Holder pushed federal prosecutors to rethink how they charge defendants, using discretion to seek justice and fairness, and ensure the punishments fit the crimes. This has sparked a much-needed conversation on prosecutorial charging and plea bargaining, which have been shrouded in mystery for far too long.

Holder’s successor will take over at a pivotal moment. The federal prison population declined in 2013 for the first time since 1980, and projections indicate a continued decline over the next two fiscal years. But these declines aren’t enough: federal prisons remain dangerously overcrowded, threatening the safety of inmates and staff alike and undermining efforts to provide recidivism reduction programming. While the projected declines are heartening, a great deal of work remains to address the problem.

On the positive side, Holder’s leadership has initiated an important discourse about the appropriate role of the prosecutor in controlling prison growth, what it means for prosecutors to protect public safety, and how to measure their success. Rather than looking at conviction rates, there is a new focus on whether prosecutors are making judicious decisions about how to most effectively use scarce and costly prison beds, and whether these practices are actually contributing to public safety. Time and again, the research shows that the severity and length of punishment do little to deter crime.

Just this week, Holder spoke at an event hosted by the Brennan Center for Justice and reiterated his vision for federal prosecutors to reorient themselves around the twin goals of reducing crime and mass incarceration. But a call for prosecutors to contribute to reductions in incarceration must be grounded in an understanding of the root causes of growth in the federal prison population, and an informed discussion about what it means for prosecutors to promote public safety. This requires a close look at the decision points where prosecutorial discretion governs who goes to prison and for how long.

Here’s where we can begin that exploration.

Prosecutors should reconsider the cases they accept into the federal system. While both state and federal authorities have jurisdiction over most drug cases, lower-level drug offenses may still be accepted into the federal system. As Holder directed in his 2013 speech to the American Bar Association, US Attorneys can develop “specific, locally tailored guidelines . . . for determining when federal charges should be filed, and when they should not.”

Charging cases at the state level doesn’t simply shift the onus from the Federal Bureau of Prisons to state prisons without other benefits. Because federal facilities are spread across the country, serving a sentence in a state facility means that prisoners are more likely to maintain connections to their community, have access to reentry planning, and benefit from family visits (Urban researchers have recently discussed the  importance of serving time locally). Additionally, state prisoners may serve shorter sentences than federal prisoners or be eligible for parole or earned release.

Determining which types of drug crimes should be charged federally is contentious and complex, but there are very likely a significant number of cases in the federal system that could have been handled at the state level. While criminal justice researchers are encouraging federal prosecutors to measure their impact on prison growth by tracking the number of filed cases resulting in incarceration, we have to move beyond simply looking at resulting sentences as a new indicator of prosecutorial success.

Measuring the percent of cases that federal prosecutors decline to file is also a critical performance measure. The number of federally filed cases recommended for diversion or alternative sentences to incarceration is an important but ancillary measure to the number of cases filed in the first place.

Federal prosecutors should adjust their charging practices to avoid triggering mandatory minimums. In its new report, the Brennan Center recommends that federal prosecutors track the “[p]ercent [of] sentenced defendants for whom prosecutors recommended downward departures from the federal sentencing guidelines” as a measure of success in reducing the prison population. But the amount of time served for a federal drug offense is primarily a function of mandatory minimum sentences and truth-in-sentencing requirements. As a result, simply recommending downward departures from the sentencing guidelines for certain charges will not make a meaningful dent in prison populations without a legislative change.

Prosecutors play a critical role by deciding which charges to file in the first place. Holder’s 2013 Department Policy Memo directs prosecutors to decline to charge drug quantities that trigger mandatory minimums for certain lower-level, nonviolent offenses. If federal prosecutors want to measure their success in helping to reduce the prison population, they should capture the percent of cases that excluded certain charges in an effort to avoid mandatory minimums for appropriate defendants.

Further reducing the federal prison population will require cooperation and coordination across numerous actors. Urban’s research on the federal system shows that a mix of reforms to sentencing, prosecution, and release policies are required to yield a meaningful impact.

Altering success measures for US Attorneys must be part of these reforms, but it’s critical that the measures of success that prosecutors employ are informed by an understanding of the causes of prison population growth and the decision points that matter most.