AS DRUG dealers go, Ricky Minor was hardly a kingpin. Police found 1.2 grams of methamphetamine in his home—enough to keep a heavy user high for a day. They also found matches, acetone and cold medicine, so the Drug Enforcement Administration guessed that he could have made another 192 grams of the stuff. Mr Minor, a cash-strapped addict, pleaded guilty. He had never been to prison before, but he had convictions for selling small quantities of marijuana and cocaine, shouting at a neighbour who had poisoned his dog, shoving a police officer and driving while intoxicated. He was condemned to life in prison without any chance of parole. The judge said the sentence was wildly excessive, but under mandatory-minimum sentencing laws, he had to impose it.

This week Eric Holder, Barack Obama’s attorney-general, declared that America has an "unnecessarily large prison population" (see article). That is putting it mildly. The Land of the Free has 5% of the world’s population, but 25% of its prisoners. In all, about 2.2m Americans fester behind bars: one in every 107 adults. Minor crimes are punished severely, serious ones ferociously. The cost is staggering: $80 billion a year, or $35,000 per inmate; not to mention "human and moral costs that are impossible to calculate", as Mr Holder put it. America’s prisons are often harsher than those in other rich countries (see article), as the protests against solitary confinement in California illustrate (see article).


For decades American politicians have assumed that mass incarceration works, wooing voters with ever-tougher sentencing laws. The dramatic fall in crime since the 1990s has persuaded many that they were right. Locking up the worst criminals while they are young, fit and dangerous clearly makes America safer. But keeping sad cases like Mr Minor incarcerated past pensionable age serves little purpose. Prison has diminishing returns, and America long ago passed the point where jailing more people makes sense. As Mr Holder said, the system is "both ineffective and unsustainable". Not before time, he has proposed some ways to reform it.

First, federal prosecutors will no longer charge "low-level, non-violent" drug suspects with offences that carry "draconian" mandatory-minimum sentences. These are often triggered by the weight of drugs involved; by not disclosing this fact, prosecutors will let judges decide what punishment might fit the unique circumstances of each case. Second, elderly prisoners who have served much of their sentence and pose no great threat will be released earlier. Third, more offenders will be given drug treatment or community service instead of prison. Finally, Mr Holder will try to remove some of the obstacles that stop ex-convicts from finding jobs.

Federal prisons, which Mr Holder controls, hold only 10% of America’s prisoners; the rest are in state or county lock-ups over which he has little authority. Nonetheless, his reforms are important, and should be applauded. For one thing, the federal-prison population has grown by an alarming 800% since 1980. For another, Mr Holder’s reforms complement action in the states, 17 of which reduced the number of people they locked up between 2000 and 2010 while still reducing crime. The boldest reformers have been conservative states such as Texas. Now that Mr Obama’s man has pitched in, penal reform could perhaps become a bipartisan crusade, uniting budget hawks with bleeding hearts.

Be bolder, Holder

Since so many of America’s prisoners are drug offenders, legalising drugs would help a lot. Even if they balk at that, both the federal government and the more punitive states should make more use of cheap, effective alternatives to prison, such as electronic tagging. Lawmakers should scrap mandatory-minimum laws and let judges judge. In general, shorter sentences are better; they deter nearly as much as long ones and cost far less. Some of the money saved could be spent on better detection, which really does deter. The aim should be reducing crime, not taking revenge. Mr Holder’s ideas have met with little opposition: he could have gone much further.

Adam Lee Nemann
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Trial and Defense Attorney, Adjunct Professor of Law at Capital University, founder of Nemann Law Offices
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