DAVID GREENE, HOST:
And the Obama administration is trying to reduce prison time for some people convicted of less serious crimes. Attorney General Eric Holder outlined a new approach to criminal justice yesterday in a speech to the American Bar Association in San Francisco. He's targeting what he says is expensive and racially biased overcrowding in American prisons.
(SOUNDBITE OF SPEECH)
ATTORNEY GENERAL ERIC HOLDER: Too many Americans go to too many prisons, for far too long, and for no truly good law enforcement reason.
GREENE: The attorney general wants to reduce the mandatory minimum sentences that prosecutors often seek, even for non-violent crimes. Mandatory minimums came into play in the 1980s as a way to fight the war on drugs, and since then, Holder says, the federal prison population has grown by almost 800 percent. Ohio State professor Douglas Berman is an expert on criminal sentencing and we reached him at his home in Columbus, Ohio. Professor, good morning.
DOUGLAS BERMAN: Good morning.
GREENE: So actually changing the law, the sentencing laws, would take an act of Congress, so what is the attorney general actually able to do hear?
BERMAN: He's able to make instructions that all prosecutors, federal prosecutors across the country need to follow. And what he is seeking to do is encourage prosecutors not to use the kind of heaviest hammers that current federal law provides, particularly for low-level drug offenses; to make sure the judges then have authority to give lower sentences, rather than what he called the draconian extreme sentences that current law calls for, in even some low-level drug cases.
GREENE: So if prosecutors are following these instructions from the attorney general, how do they actually - what do they do in the courtroom to avoid triggering these mandatory minimums?
BERMAN: The instructions call for them not to include the exact drug quantities in the indictments. And since most cases end up having plea agreements, it means the defendants won't have to plead guilty to a statute that had a particular drug quantity triggering these very long sentences. And that's actually part of a broader difficulty that many advocates have complained about; that the drug quantity rather than a person's role in the offense, or other better proxies for their aggravating factors in their crime, is what triggers these long sentences.
So often, the concern is a drug mule who may have their hands on a significant quantity, but are just perhaps dealing to feed their own habit, will have triggered these long, five, 10, 15, 20-year sentences. And so that's what the attorney general instructions specifically provide, that the drug quantity won't be charged directly in the indictment, so that when there's a plea or a trial it won't demand that a judge impose at least five, 10, 15, 20 years - the long sentences the statutory law now provides if a certain quantity is established.
GREENE: And is it common for the attorney general to actually offer guidelines for how federal prosecutors should try their cases?
BERMAN: It is actually for the attorney general to provide general guidelines. What's unusual and what makes this remarkable is for those guidelines to say specifically, don't charge the most serious offense. In fact, a decade ago, Attorney General Ashcroft at the time issued guidelines to all prosecutors saying, it's important that you always charge the most serious provable offense. And so, the guidelines themselves are not remarkable. The substance of what these guidelines say is why the speech has gotten so much attention, and I think rightly so.
GREENE: And one thing the attorney general said in that speech is that, you know, he's concerned about longer sentences for minority defendants that they had seen. Do his changes get at that problem?
BERMAN: Not directly, I think there is good reason to identify the war on drugs and particularly mandatory minimum sentences, as practically ending up having a disproportionate impact on minority communities because of policing practices and prosecutorial practices. But there's nothing that I see at least right now that is directly focused on making sure that his concerns about racial disparity are directly addressed.
Now, he did also speak to instructing U.S. attorneys to do more studying and to make specific recommendations on this front. So it's not as though he doesn't recognize that this is just the first step in dealing with all the problems that he mentioned in his speech.
GREENE: And, Professor Berman, we just have a few seconds left. I guess I wonder is this where things end? Or do you think that the Obama administration might seek some real, you know, systematic changes and seek action from Congress at some point?
BERMAN: I'm certainly hopeful this is just the start. And, in fact, there are bills in Congress that the attorney general said he's supportive of recognizing that Congress needs to do more, as you mentioned, before. But, of course, we've also seen in this administration often a very strong talk about things they want to get done, and then often an inability to go forward or to push as hard - whether we're talking Gitmo or some other...
GREENE: All right, we'll have to stop there. Sadly, we're out of time. Douglas Berman, law professor at Ohio State University, thanks so much for joining us.
BERMAN: Thank you for having me. I appreciate it, David.
GREENE: This is NPR News. Transcript provided by NPR, Copyright NPR.