Eric Holder's prison break: the attorney general's belated but welcome criticism of mass incarceration and mandatory minimums.

• Author: Sullum, Jacob
• Position: Columns

Two years ago, while researching a story about drug policy reformers' disenchantment with Barack Obama, I interviewed Eric Sterling, who as a lawyer for the House Judiciary Committee in the 1980s had a hand in creating the mandatory minimum sentences he would later decry as an activist. Sterling was aghast at the penny-ante crack cases that federal prosecutors across the country were pursuing, sending overwhelmingly black defendants to prison for years over mixtures of cocaine and baking soda weighing less than an ounce.

Aside from the injustice of such harsh penalties, Sterling said, "this is a scandalous waste of federal resources." Evidently the attorney general of the United States agrees, although it took him almost five years to say so. Better late than never.

"Federal prosecutors cannot--and should not--bring every case or charge every defendant who stands accused of violating federal law," Eric Holder declared in an August 12 speech to the American Bar Association. As part of a "Smart on Crime" initiative, he said, U.S. attorneys will "develop specific, locally tailored guidelines consistent with our national priorities--for determining when federal charges should be filed."

Those "national priorities" include "focus [ing] on the most serious cases that implicate clear, substantial federal interests." Presumably that means the Justice Department will stop dragging young black men into federal court for a few rocks of crack.

Maybe not. In addition to telling the U.S. attorneys who nominally work for him that they should not prosecute nonviolent, low-level drug offenders, Holder told them what to do when they prosecute nonviolent, low-level drug offenders. These two instructions seem somewhat contradictory, although perhaps it is best to think of them as Plan A and Plan B.

Plan B involves omitting drug amounts from charges against low-priority defendants. Since mandatory minimums are triggered by drug weight, this maneuver could substantially reduce some prison terms.

It is not clear exactly who will be eligible for such prosecutorial mercy, or to what extent it will go beyond the existing "safety valve" for minor drug offenders. One of Holder's requirements is "no ties to large-scale organizations," a test that any...