The Injustice of Mandatory Prison Sentences

The Injustice of Mandatory Prison Sentences

By Carl M. Cannon - November 10, 2013

Self-government in our nation’s capital is (take your pick) broken, dysfunctional—or gridlocked by hyper-partisan positioning. That’s a familiar story line; I’ve used it myself. But in one key domestic policy area, powerful liberal Democrats in the U.S. Senate are collaborating with conservative Republicans to address a festering and expensive injustice.

I’m referring to the scourge of mandatory minimum prison sentences embedded in federal law.

Slowly, a consensus has formed that in tying the hands of judges and juries—and insisting on fixed prison terms, some of them quite draconian, for nonviolent crimes -- the government is wreaking needless havoc on thousands of families while wasting untold billions of taxpayer dollars.

The argument has been that tough sentencing takes career criminals off the street for longer, reducing crime disproportionately, thereby making all of us safer—and you can’t put a price on that. It’s an argument with superficial appeal, but it isn’t backed up with valid research.

Gradually, even the toughest law-and-order types have blanched at cases such as that of 25-year-old Weldon Angelos, sentenced to 55 years in prison for dealing marijuana. A slew of former judges and prosecutors filed friend-of-the-court briefings urging the trial judge to find the mandatory sentence in violation of the Eighth Amendment, but federal Judge Paul G. Cassell’s hands were tied.

Cassell described the punishment as “unjust, cruel, and even irrational,” but that’s not the same as unconstitutional. So he did his sworn duty, although not before calling on then-President Bush to commute Weldon’s sentence to less than 18 years. That plea fell on deaf ears, as do almost all presidential pardon and executive clemency requests these days. It’s a function of our politics that Richard Nixon—no bleeding heart—pardoned more Americans each Christmas than guys like Bill Clinton, George W. Bush, or Barack Obama did (or have done) in two terms.

Presidents fret that some criminal they pardoned will commit another violent crime. This actually happened to Clinton when he was governor of Arkansas, and it was not something he wanted to occur again. As for members of Congress, they fear being portrayed as “soft on crime” at election time. This is not an idle worry, either.

In the statewide election held in Virginia on Nov. 5, the tightest race was for attorney general. It was apparently won—a recount is likely—by Republican Mark Obenshain, who in the campaign’s waning days accused Democrat Mark Herring of voting “to allow sex offenders, including rapists, to serve shorter sentences.”

Herring had done no such thing. He did vote against a bill that took more discretion away from trial judges in certain felonies with mandatory minimums. But in a race decided, at this writing, by 727 votes out of 2 million cast, was Obenshain’s attack ad the difference?

Similar calculations have been made in Capitol Hill offices for the better part of three decades. Hard-nosed conservative lawmakers, aided and abetted by timid liberals, treat sentencing reform as a legislative no-fly zone. Into this breach has leapt an unlikely savior: the Tea Party.

First some background. In mid-June of 1986, University of Maryland basketball star Len Bias was chosen second in the NBA draft by the Boston Celtics. Destined for stardom, Bias never wore the Celtics’ iconic green uniform; he was dead within hours of being drafted from a cocaine overdose.

Meanwhile, the murder rate in America’s big cities was breaking records during the crack cocaine wars, and House Speaker Thomas P. “Tip” O’Neill Jr., who happened to be from Boston, ordered his committee chairmen to produce legislation expanding the federal government’s reach into drug crimes—and lengthening penitentiary terms. The legislation was signed by President Reagan. And that was just the start.

In 1992, Bill Clinton campaigned for president vowing “to put more police on the street and more criminals behind bars.” Incumbent George H.W. Bush promised to double spending on federal prison construction. New mandatory minimum requirements emanated from Capitol Hill in every session of Congress.

The results were predictable, even as the social science that warned Americans of a coming generation of “super-predators” turned out to be bogus. The percentage of Americans in prison doubled in the mid-1980s to historic levels—and then doubled again 10 years later. To accommodate these felons, many of them low-level drug dealers serving long prison terms, the nation went on a prison-building binge.

This orgy of incarceration hasn’t come cheap. The year Reagan was elected, 25,000 inmates were housed in federal prison. Today, that number is 219,000. An Urban Institute report released this month notes that the federal Bureau of Prisons will spend nearly $7 billion to house those convicts next year, more than one-quarter of the Department of Justice budget.

Fixing bad laws hasn’t proved easier than enacting them. Although the 1986 legislation rushed into law in the wake of Len Bias’ death resulted in tens of thousands of black and Latino defendants serving vastly longer prison sentences for crack over the powder cocaine favored by whites, it took 24 years to address the issue.

That alteration, the Fair Sentencing Act of 2010, was passed by Congress nearly unanimously. It corrected the crack-powder disparity and eliminated the five-year federal mandatory minimum for possession of crack, but it inexplicably wasn’t made retroactive. The upshot was that the people in the appalling case studies cited to change the law remained behind bars.

New legislation aims to close that circle, and further reduce mandatory minimums for minor drug offenses. It’s sponsored by Dick Durbin, D-Ill., and Mike Lee, R-Utah, in the Senate, along with another political odd couple, Raul Labrador, R-Idaho, and Bobby Scott, D-Va., in the House.

Such cooperation is not new: The 2010 reform happened after a spate of esteemed conservatives—Ed Meese, Grover Norquist, Newt Gingrich, David Keene, and Ward Connerly, among them—threw their weight behind it.

“Mandatory minimum sentencing reform might be the only bipartisan issue in Washington right now,” says Julie Stewart, president of Families Against Mandatory Minimums.

Another bill in the hopper would apply the judicial “safety valve” to crimes other than drug offenses. Some of the most conservative members in Congress are behind it, including two Tea Party favorites, Kentuckians Rand Paul in the Senate and Tom Massie in the House. They’re co-sponsoring the legislation with prominent liberals, Democrats Patrick Leahy (the powerful chairman of the Senate Judiciary Committee) and Rep. Scott.

Tea Party interest in this issue is actually unsurprising. Draconian national sentencing laws offend both their sense of fiscal prudence and their philosophical notions of federalism. Julie Stewart, for one, is hopeful the legislation will pass the Senate this month. Better yet, I ask her, why not just repeal mandatory minimums altogether?

“That would be lovely,” she replied with a laugh. “Why don’t you tell them?” Okay, I just did. 

Carl M. Cannon is the Washington Bureau Chief for RealClearPolitics. Reach him on Twitter @CarlCannon.

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