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Is President Obama prepared to release thousands of prisoners?

Attorney General Eric Holder was interviewed on American Forum on 1/23. The interview airs on public television beginning 2/9.

The American Forum Interview With Attorney General Eric H. Holder 

Attorney General Eric H. Holder, in an interview to be broadcast on public television this Sunday (Feb. 9, 2014), made some remarkable comments about the American system of justice, including:

  • There are “probably thousands” of Americans imprisoned in the U.S. serving sentences far longer than they should be,
  • That the likelihood that many people currently imprisoned are actually innocent is the “ultimate horror” of our justice system,
  • And the strong intimation that a wave of presidential commutations for drug offenders may be coming from the White House in the months ahead.

 “We have…to make people who are incarcerated aware of that avenue,” 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.  “And 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.”

 “The president is willing to do these kinds of things,” Holder said.

Asked about the attorney general’s comments, a White House spokesman on Friday referred back to the 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

Last week, Deputy Attorney General James Cole elaborated on Holder’s comments in a speech to the New York State Bar Association, asking private 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 legislation pending in congress that would create a new, presumably faster, channel for judges to review sentences now considered unfairly harsh.

The number of imprisoned Americans who could benefit from these policies—if indeed they come to pass—is huge.  The number of federal prisoners serving sentences related to crack cocaine—which until 2010 received penalties 100 times more harsh than for powder cocaine—approaches 30,000. And the legislation currently in Congress, if passed, would open the possibility of shortened sentences, or releases, for about 12,000 non-violent inmates.

Moreover, 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 airing Sunday that the White House is prepared to use its executive power more forcefully in the second term in similar cases.

The Obama administration has been criticized by many supporters for its relatively spare use of presidential pardons and commutations, compared to past presidents.

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 TSA 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 of more than 2.2 million Americans currently in state and federal prison systems—a total of 25% of all prisoners in the world.

Holder made clear that he and President Barack Obama—who have been criticized harshly at times for allegedly moving too slowly to address mass incarceration, especially of young African-American men--plan to do much more in the administration’s second term to facilitate the 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 law could lead to the release or sentence reductions of as many as 12,000 prisoners, by some estimates.

That measure would address what is widely viewed as an gaping hole in the Obama’s 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 thousands of non-violent prisoners given very long sentences at the height of the drug war got no relief. 

“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, 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.”

ProRes: http://web1.millercenter.org/temp/2014_0123/EricHolder_PrisonSentences_ProRes.mov 

H.264: http://web1.millercenter.org/temp/2014_0123/h264/EricHolder_PrisonSentences.mov

More startling than Holder’s support for allowing federal judges to more easily review—and shorten—older 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 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.”

ProRes: http://web1.millercenter.org/temp/2014_0123/EricHolder_DeathPenalty_ProRes.mov 

H.264: http://web1.millercenter.org/temp/2014_0123/h264/EricHolder_DeathPenalty.mov 

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