UVA Law Professors Analyze New Federal Policy to Curtail Stiff Drug Sentences

Brandon Garrett

University of Virginia law professor Brandon Garrett said the change in the Department of Justice's policy on low-level drug offenders has been "far too long in coming" but also raises several important questions.

August 12, 2013

Attorney General Eric Holder on Monday announced that nonviolent, low-level drug offenders without ties to gangs or major drug organizations will no longer be charged with federal offenses that impose long mandatory prison sentences.

University of Virginia law professor Brandon Garrett, a leading expert in criminal procedure, wrongful convictions, habeas corpus and more, called Holder's announcement a much-needed "first step."

"This change in [U.S. Department of Justice] policy has been far too long in coming," Garrett said. "It is a moral scandal, and not just a fiscal problem, that we have been willing to unnecessarily spend vast sums on incarcerating the tens of thousands of low-level offenders who fill our overcrowded federal prisons. We know that convicting low-level drug dealers or drug possessors does nothing to stop the drug trade. But for over 15 years there have been no federal prosecution guidelines at all for drug cases.

"Although about half of the inmates in federal prisons are serving time for drug offenses, the vast majority of federal drug convicts had no meaningful criminal history, no leadership role and no use of weapons. As federal judge John Gleeson has put it, 'anyone who believes that the federal system deals only with "the most serious drug and violent" offenders isn't familiar with the federal criminal docket.'

"Now the questions will be whether this new DOJ push is effective, how clear the new guidelines are, and what is delegated to each of the various U.S. Attorney's Offices. Moreover, such prosecution guidelines are not legally binding and they can be changed by future administrations. They are only a first step."

Darryl Brown

UVA law professor Darryl Brown, an expert in criminal law, criminal procedure and evidence, said Holder's announcement underscores a shift in the politics surrounding criminal justice.

"I think Attorney General Holder's announcement is a sign of how much the politics around criminal law has changed in recent years," Brown said. "Finally, politicians in [both] parties can adopt policies that not long ago would have been pilloried as 'soft on crime.'

"The imprisonment rate in the U.S. has finally started to decline slightly in the last three years, after 30 years of record-setting increases. Holder's policy is a sign that federal prosecutors may help push the federal criminal justice system to follow policy changes in the states that have cut back on our draconian sentencing policies of recent decades."

Founded in 1819, the University of Virginia School of Law is the second-oldest continuously operating law school in the nation. Consistently ranked among the top law schools, Virginia is a world-renowned training ground for distinguished lawyers and public servants, instilling in them a commitment to leadership, integrity and community service.

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