The Department of Justice’s drug offense reforms are only a first step.

U.S. Attorney General Eric Holder recently announced significant changes in how the federal government treats people charged with drug offenses.  The changes he announced include:

U.S. Attorneys will be instructed that when they charge certain defendants with a drug possession offense, they should not put the quantity of drugs in the indictment.  That directive is intended to avoid the imposition of mandatory minimum sentences based on the volume of drugs possessed.  The quantity of drugs will still be taken into account in sentencing, but the result could be a sentence less than a ten year mandatory minimum sentence.

The federal government will expand a program for compassionate release of elderly inmates who did not commit violent crimes and have served significant portions of their sentences.

The government will increase the use of drug-treatment programs as alternatives to incarceration.

Holder plans to make these changes by internal change to Justice Department policy.  In addition he urges passage of legislation aimed at giving federal judges more discretion in applying mandatory minimum sentences to certain drug offenses.  That legislation is supported by Senators Richard J. Durbin (D-Ill.), Patrick J. Leahy (D-Vt.), Mike Lee (R-Utah), and Rand Paul (R-Ky.).

Attorney General Holder’s initiatives are very welcome steps towards a rational approach to drug possession.  At a time when there is a great need for reform, it is heartening to see the federal government take important steps forward and help set the tone for a different discussion about drug offenses. But these actions are not nearly enough.

It is hard to overstate the scope of America’s incarceration problem.  Although the United States has about five percent of the world’s population, almost a quarter of the world’s prisoners are incarcerated in American prisons, according to the Justice Department.  Nine to ten million people cycle through local jails in the United States each year.  While the U. S. population has increased by about a third since 1980, the federal prison population has grown by about 800 percent.  Overall, there are now more people under “correctional supervision” in America – more than six million – than were in the Gulag Archipelago under Stalin at its height.

These extraordinary rates of incarceration harm the African-American community in particular.  Black adults are four times as likely as whites and nearly 2.5 times as likely as Hispanics to be under correctional control.  One in 11 black adults was under correctional supervision at year end 2007.  According to The Sentencing Project, among black males in their 20’s, one in eight is in prison or jail on any given day.  In 2005 African-Americans in Illinois, for instance, were 9.1 times more likely than whites to be jailed or imprisoned.

Criminal conviction is devastating to individuals and their families.  With the increased use of background checks by potential employers, it is becoming increasingly difficult, if not nearly impossible, for people with criminal records to find employment.  They lose rights to public housing and eligibility for student loans, as well as the right to be employed or licensed in a variety of professions.  These provisions make recidivism extremely likely.  We are creating a class of people who have no prospects, who cannot possibly support families or provide the basis for sound and stable communities.  For sheer waste of human capacity, our system is hard to match.

Furthermore, the cost to taxpayers of mass incarceration is simply too high, especially (for drug offenders) when compared to the cost of drug treatment.  According to Attorney General Holder, incarceration in federal, state, and local institutions in 2010 alone cost $80 billion.  It costs the state more than seven times as much to imprison a woman as it does to provide her treatment, according to the ACLU.  The Sentencing Project reports that every $1 spent on drug treatment provides $7 in savings to society.

There is a need, then, to handle non-violent drug offenders in ways that do not lead to incarceration or a criminal record.  But Attorney General Holder’s proposals do not come anywhere close to the dramatic reforms needed to more toward that end.

The federal government’s new plan to not state the quantity of drugs in federal criminal indictments will do little to stem rates of incarceration.  Defendants found guilty will still go to prison – they may avoid a mandatory minimum but they will still end up with a prison sentence and a criminal conviction that will ruin their life.  And the proposed reform will not help many defendants.  According to the New York Times, the policy will not apply to those with a significant criminal history.  Drug defendants with a significant criminal record will gain no relief and will face standard mandatory minimum sentences.

We need much more dramatic reform.  People charged with non-violent drug offenses should go to an administrative system, rather than through the criminal process.  They should be directed to drug treatment programs, paid for by federal, state, and local governments, and should assigned to community service.  They should not be incarcerated and, if they complete their administrative assignments, should not be tried in the criminal system and should not end up with a criminal conviction. 

The federal government cannot make these changes alone.  And they cannot be made simply by executive direction.  It will require legislative changes at all levels of government – dramatic changes.  The scope of the problem requires that we try something significantly different.