08/15/2013 05:40 pm ET Updated Oct 15, 2013

Stitching Up a Paper Cut: Eric Holder Is 'Fixing' a Federal Problem at the Expense of the States

So, United States Attorney General Eric Holder vowed to the American Bar Association's House of Delegates that the federal government will no longer impose "draconian mandatory minimums" for nonviolent, low-level drug offenders not tied to gangs or cartels. Holder called the federal government "coldly efficient" in incarcerating drug offenders, but said that mandatory minimum sentences are not in the best interest of public safety. Good for him.

In fact, Holder says, the "war on drugs" is costly, inefficient, and unsustainable when it leads to lengthy prison terms for minor offenses. He says he will give U.S. Attorneys across the nation more leeway in determining which cases to prosecute and which to let the states handle. Effective immediately, says Holder, nonviolent drug offenders "will be charged with offenses for which the accompanying sentences are better suited to their individual conduct, rather than excessive prison terms more appropriate for violent criminals or drug kingpins."

Historically, encouraging lighter sentences for drug offenders has been an unpopular move. However, with state and federal prisons bursting at the seams and prison overcrowding costing tax payers billions of dollars annually, lengthy minimum sentences for nonviolent offenses have been a burden rather than a salvation.

Sadly, Mr. Holder's vow to let the punishment fit the crime will do nothing to alleviate overcrowding in state prisons. This is merely an attempt to stitch-up a paper cut. Where will the federal overflow go? God knows the criminal justice system won't simply stop prosecuting these "low-level" individuals.

Truth be told, the burden is going to fall on the states.

The problem, though, is that in states notorious for tough minimum sentencing, incarceration rates and prison overcrowding are nothing short of astronomical.

Take California, where prison overcrowding is so extreme that the Supreme Court ruled that prisons at nearly double capacity violated the constitutional rights of inmates by jeopardizing their health and safety. The Supreme Court ordered the state to reduce its prison population--not down to the designed capacity, but to 137.5 percent capacity. The prison population, said the Court, must be no greater than 110,000 inmates.

When the state managed to get the prison population to 120,000, California Governor Jerry Brown declared the state's prison crisis over and asked the Supreme Court to let well enough alone. The High Court stood by its decision though, and now California must release another 10,000 inmates by the end of the year.

Why are California prisons so crowded? It is in large part due to harsh mandatory minimum sentences and the state's notorious "three strikes" law. On the third criminal conviction, a defendant is sentenced to life in prison, even if the third crime is a minor offense like shoplifting or petty theft. According to the New York Times, there are currently 9,000 California inmates serving life sentences as a result of the 1994 law.

So, how will Mr. Holder's proposal fix similar state issues? It won't.

The overcrowding of our state prisons is an issue coast to coast. Many people are familiar with California's prison overcrowding, particularly in light of the impending release of 10,000 inmates, but fewer realize the severity of crowded prisons in the nation's heartland.

Oklahoma has some of the highest incarceration rates in the nation. It generally ranks as having the highest incarceration rates for women and is consistently in the top five for men. Most of these inmates are serving notoriously harsh sentences for drug offenses, despite the best efforts of Oklahoma criminal defense attorneys like myself.

Among noteworthy sentences are a woman sentenced to 12 years in prison for a first offense selling $31 worth of marijuana, a paraplegic sentenced to life in prison after being caught with 2 ounces of medical marijuana (not legal in Oklahoma) in his wheelchair, and a man convicted of cultivating marijuana sentenced to 93 years in prison. The men had their sentences reduced to 10 years and 20 years, respectively; the mother of four received early parole after serving two years when her story gained national media attention.

To be fair, Oklahoma has made recent attempts to alleviate prison overcrowding through its Justice Reinvestment Initiative. The JRI is intended to reduce overcrowding by minimizing recidivism; however, the state has some of the third lowest recidivism rates in the nation. Re-offending is not the problem in Oklahoma. The problem, according to the Oklahoma Policy Institute, is excessively long sentencing and a lack of prison alternatives for low-level, nonviolent offenders.

One element of the JRI is a mandatory nine-month minimum probation following release from prison. Again, this is designed to reduce recidivism and keep those fresh out of prison from quickly returning. However, this post-incarceration supervision is unfunded, and it has been imposed on only nine of the 1,621 people eligible. But a recent change to Oklahoma's conviction procedure and plea paperwork shows the state's push to actually enforce the regulation.

With that in mind, how are states like California and Oklahoma going to deal with the influx of inmates that will no doubt result from Holder's promise to back off prosecuting lower-level drug crimes in federal court?

Perhaps the U.S. Attorney General's announcement will incentivize the states to take a fresh look at how they prosecute and punish minor drug offenses. If the federal government recognizes that mandatory minimums are likely inappropriate sentences for nonviolent offenders, perhaps the states will follow suit, developing diversion programs, prison alternatives, and reasonable means for re-entry.

If not, Holder just created an even bigger problem for the states by attempting to fix the federal issue.