Eric Holder Calls a Truce on the War on Drugs
Policy + Politics

Eric Holder Calls a Truce on the War on Drugs

REUTERS/Stephen Lam

In calling for a major curtailment of stiff federal penalties for drug convicts, Attorney General Eric Holder on Monday forcefully addressed a  troubling reality: For decades the federal prison system has been a leading growth factor in government spending.

Over the past 25 years, the Bureau of Prisons has seen a staggering 800 percent increase in its population, with more than 219,000 inmates currently behind bars – and almost half serving time for drug-related offenses.

Perhaps most alarming is that while the United States is home to 5 percent of the world’s population, almost a quarter of the world’s prisoners – or 1.57 million individuals – are incarcerated in U.S. prisons, according to the Justice Department. Overall, the prisons bureau is operating at roughly 40 percent above its rated capacity.

The overall U.S. prison population dropped in 2012 for the third consecutive year – an unmistakable sign of a shift away from a long-term policy of mass imprisonment. But until now, state governments have led the way. Indeed, about half the 2012 decline – or 15,035 prisoners – occurred in California, which has been under a Supreme Court order to relieve prison overcrowding.

The bloated prison population comes at a steep price for taxpayers. The federal government spends nearly $7 billion a year to house prisoners in more than 116 facilities across the country – or nearly a quarter of the Justice Department’s annual budget. In all, federal, state and local authorities spend an estimated $80 billion a year on prison operations.

Here’s how that breaks down: The annual costs per inmate are $21,006 for minimum security, $25,378 for low security, $26,247 for medium security, and $33,930 for high security, according to a 2012 Urban Institute study. By contrast, the annual cost of supervision by probation officers in the community is about $3,433 per offender.

“Although incarceration has a role to play in our justice system, widespread incarceration at the federal, state and local levels is both ineffective and unsustainable,” Holder said in a speech at the American Bar Association’s annual meeting in San Francisco, announcing his new policy. “It imposes a significant economic burden – totaling $80 billion in 2010 alone – and it comes with human and moral costs that are impossible to calculate.”

The long-term crisis of prison overcrowding and skyrocketing government costs date back a decade or more. That’s when a rise in crime rates and an explosion in drug trafficking prompted tough action by Congress and state legislatures to impose mandatory minimum sentences for drug possession.

The Anti-Drug Abuse Act of 1986 set out a menu of mandatory sentences, ranging from five years to ten years or more, depending on the type and quantity of illegal drugs involved. Offenders who were previously convicted of two or more drug felonies were subject to life in prison.


The average sentence for all offenders with a term of imprisonment in FY 2010 was 54 months, according to the Urban Institute analysis. Sentence lengths vary significantly by the type of offense, from an average of 91 months for weapons offenders, 36 months for fraud, and 20 months for immigration offenders. Half the drug trafficking offenders who were sentenced in 2010 had an average sentence of 78 months – including many with no significant prior criminal record.

Holder said he would try to ease overcrowding in prisons by ordering federal prosecutors to omit listing quantifies of illegal substances in the indictments for low- level drug cases. This new policy would specifically apply to defendants who meet four criteria: Their alleged offense did not involve violence, the use of a weapon or sales to minors; they are not leaders of a criminal organization; they have no significant ties to large-scale gangs or cartels; and they have no significant criminal history.

“A vicious cycle of poverty, criminality and incarceration traps too many Americans and weakens too many communities,” Holder said yesterday. “Many aspects of our criminal justice system may actually exacerbate these problems rather than alleviate them.”

Holder, arguably the most controversial member of the Obama cabinet, is attempting to burnish his legacy before he steps down. His latest initiative seeks to punish the high-level and dangerous dealers. He has directed 94 U.S. attorneys to develop guidelines tailored to their regions to determine when to bring federal drug charges against suspects.

But administrative action alone will not be enough, and the attorney general is counting on Congress to get into the act. Yesterday, he praised a bipartisan bill supported by Sens. Richard J. Durbin (D-IL), Patrick J. Leahy (D-VT), Mike Lee (R-UT) and Rand Paul (R-KY) granting more discretion to federal judges in handing down sentences, asserting that it “will ultimately save our country billions of dollars.”

The so-called “Smarter Sentencing Act of 2013” would, among other things, expand the existing federal “safety valve” that enables a judge to sentence below a mandatory minimum in appropriated cases. The bill has drawn strong support from civil liberties groups.

As the national crime rate has declined and government budget challenges have increased, state officials have taken important steps to scale back their incarceration rates by overhauling sentencing and parole guidelines. A dozen states have taken these and other actions over the past three years that are estimated to save more than $4 billion in prison costs in coming years, according to a Pew Charitable Trust analysis.

New legislation in Kentucky, for example, has reserved prison beds for only the most serious criminals, focusing resources instead on community supervision and other alternatives, according to The Washington Post. The state is projected to reduce its prison population by more than 3,000 over the next decade, at a savings of more than $400 million.

Investment in drug treatment for nonviolent offenders and changes to parole policies helped Arkansas reduce its prison population by more than 1,400 inmates, according to federal officials. It also led to a reduction in the prison population of more than 5,000 inmates in Texas last year.

“Often with unanimous votes, state leaders have shortened terms behind bars for lower-level offenders or diverted them from prison altogether,” said Adam Gelb, director of Pew’s public safety performance project. “By enacting evidence-based prison alternatives, states are reducing their recidivism rates and their incarceration rates at the same time.”

But the move toward more lenient sentencing and parole laws isn’t universally applauded by conservatives and others who worry about the possible adverse impact on public safety. And a new study by Rice University and Louisiana State University found that court-ordered efforts to improve living conditions in state prisons resulted in decreased welfare funding.

“When courts are effective in increasing spending on prisoners, the legislature has to increase taxes or cut spending in other programs, given states’ balanced budget requirements,” said Richard Boylan, professor of economics at Rice. So “most of these increases in spending come at the expense of welfare spending and/or other social programs.”

Brianna Ehley of The Fiscal Times contributed to this article.