The United States Attorney General, Eric Holder, announced this weekend that he is taking action to change the incarceration results of Federal prosecutions.

Specifically, he has memo’d all United Stated Attorneys to no longer specify the amount of drugs seized in criminal indictments, thereby avoiding mandatory sentencing laws that have led to a huge expansion, these past 30 years or so, in numbers of people incarcerated.

Holder’s action is a positive step indeed. Incarceration has for far too long ruled the justice system in our nation. As many have noted, America totals five percent of the world’s people but a full 25 percent of the world’s prisoners. This would be an intolerable condition, morally and otherwise, in any modern nation. How can it possibly be true of the country that we who live in it call “the land of the free” ?

Again, as many have noted, almost half of those incarcerated have committed non-violent, usually drug crimes. Others are elderly or have served the major portion of their sentences — terms handed to them by overly harsh, mandatory sentencing laws enacted thirty years ago and more. Trial judges used to have discretion in sentencing, as well they should, given that they see the entire trial process as it plays out before their eyes. Every case is different; discretion to the judge allowed him or her to include these differences into the record as it applied to sentencing. Mandatory sentence laws did both defendants and judges a great disservice, not to mention the harsh edge that it imposed on the entire system.

The 1980s were a time of obsession about crime brought about the advent, on the street, of “crack,” a smoked form of cocaine that drove its users to crazy acts. The same decade saw the rise of an hysteria that child-abuse was going on at day care centers. Many day care center people were prosecuted and hounded– lives ruined — as in the 1692 Salem witch trials (an d those of us who call Salem our native city know the horrors of that hysteria only too well.) As it turned out, every single one of these day care hysteria cases was overturned and the lives of those impacted restored to them as best could be. Incarcerations for non-violent offenses, however, have taken far longer to reform.

Holder supports his move by making it a cost issue. This is not mere eyewash. Incarceration costs states and the Federal government almost $ 100 billion a year. As almost two million of us are incarcerated, the dollar amount equals about $ 50,000 per prisoner — most of it being paid as wages to prison guards, wardens, medical people, and the maintenance of prison buildings and systems. Because there is huge money involved, the movement to reduce incarceration actually began, not with Holder’s recent move, but with conservative “red” states such as Texas. Obsessed by huge costs that must be paid for by taxes, these states have been first to remove non-violent offenders from the incarceration system wherever feasible. Little wonder, then, that the numbers of Americans incarcerated has fallen in each of the past three years — and the rate of decrease is accelerating.

Here and Sphere has no objection to using money issues as a reason to reduce incarceration. Nonetheless, we cannot avoid the moral and common sense concerns. In what way does incarceration of non-violent, mostly drug, offenders, supersede rehabilitation, community service, and detox centers ? Nor is it morally right that mandatory incarceration has fallen overwhelmingly on men of color. Almost one-third of all American men of color have been incarcerated at least once during their lives ! Indeed, more American men of color have experienced incarceration than were held in slavery at the timer of the Civil War. Men of color comprise five percent of the population but 40 percent of those in prison on death row.

Holder’s action will not alter the death row statistic; but his move will certainly and justifiably ease the disproportion that has put so many men of color on a path to long incarceration. For this, we applaud Holder’s action more loudly than because of its money saving.

^ Judge Shira Schendlin of Federal Court for the New York District

Note : today, as we write this editorial, the news has come of a New York Federal Judge’s finding that New York City’s notorious “stop and frisk” police practice is unconstitutional. Specifically, District Judge Shira Scheindlin found that “stop and frisk” policy has profiled people of color, violating their civil rights protected by both the 4th and 14th Amendments to the Constitution. As Scheindlin said, “many police practices may be useful for fighting crime — preventive detention or coerced confessions, for example — but because they are unconstitutional, they cannot be used no matter how effective.”

One could add to the list of unconstitutional police practices the taser-ing of citizens, not to mention the shooting of unarmed suspects. Nonetheless, Scheindlin’s decision is most welcome and a timely companion to Attorney General Holder’s move. Perhaps the word ” justice ” will now begin to mean something just as well as something punitive.

—- Michael Freedberg / Here and Sphere