Mandatory, Minimum, and Misguided
News Analysis: On crack-sentencing guidelines, the Justice Department is doing what it can to keep the Reaganites' must-punish mania alive.
February 15, 2008
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Speaking before the Senate Judiciary Subcommittee on Crime and Drugs on Tuesday, U.S. Attorney Gretchen Shappert warned that shorter crack-cocaine sentences will cause a "loss of the public's trust and confidence in our criminal justice system"—a possibility that is only slightly less troubling than Attorney General Michael Mukasey's claim that reduced sentences will mean that "1,600 convicted crack dealers, many of them violent gang members, will be eligible for immediate release into communities nationwide."
These statements are scare tactics aimed at reversing a decision by the U.S. Sentencing Commission, the agency responsible for setting sentencing rules in the federal courts, which has pegged March 3 as the first day federal prisoners doing time for crack offenses are eligible to petition for reduced sentences. This countdown comes just after the Commission's introduction of less-harsh crack-sentencing standards in November, and the December announcement that this reduction will be applicable to inmates currently incarcerated as well as future offenders. The Justice Department, citing "public safety risks," is trying to overturn the rule. But giving inmates the chance to obtain shorter sentences won't spur a mass prison exodus: Judges will still decide which inmates deserve a reduction and which don't. No one is guaranteed an early release.
As such, there's little practical reason to be alarmed by the Commission's decision. But what may be alarming—at least to the Bush administration—is that other crack-sentencing reforms are also possible. Senator Joe Biden (D-Del.) currently has a bill before Congress called the Drug Sentencing Reform and Cocaine Kingpin Trafficking Act, which would eliminate the longstanding disparity in crack-cocaine and cocaine powder sentences, increase funding for drug treatment, and get rid of the five-year mandatory minimum sentence for crack-cocaine possession. It would also increase the amount of crack needed to trigger other mandatory minimums.
Mukasey has addressed just one of these proposed changes, saying that the Justice Department is willing to "begin discussions" on adjusting the disparity in crack and cocaine powder sentences—so long as it gets its way on retroactive leniency. But in looking to cherrypick reforms, the Bush administration is fighting what might be a paradigm shift. Over the past 12 years, some 30 states have either repealed or reduced their drug-related mandatory minimum sentences, or have introduced more treatment options for drug offenders, or both. As the trend of reforming drug sentencing has spread, many outside-the-Beltway officials have grown bolder in their calls for change. Last summer, for example, the bipartisan U.S. Conference of Mayors formally resolved that "the war on drugs has failed" and called for "a new bottom line in U.S. drug policy" besides punishment.
Such developments are important. Traditionally, legislative trends outside Washington have influenced federal policy, and vice versa. In 1951, Congress passed the nation's first mandatory drug sentences with the Boggs Act, which state governments eagerly mimicked throughout the decade. Nineteen years later, Congress repealed virtually all of the Boggs Act's statutes—yet states continued to intensify their mandatory minimums into the 1980s. This time, the states were ahead of the Beltway: in 1986, Congress passed the Anti-Drug Abuse Act, which instituted today's federal mandatory minimum sentences for drug offenses.
In her testimony this week, Shappert suggested that the Anti-Drug Abuse Act was a "well-considered and fair result." But there are reasons to believe otherwise. The bill was a reaction to the death of Len Bias, a Boston Celtics star who overdosed on cocaine in 1986. With the highly publicized death, Democrats saw a chance to outflank Republicans on the drug issue. Then-Speaker of the House Tip O'Neill (D-Mass.) called an emergency meeting of his party, demanding that someone "write me some goddamn legislation" to "get out front," ahead of the GOP.
On Tuesday, Shappert urged members of Congress to reject the Commission's reforms and to keep sentencing changes up to the legislative branch. This was a clever move: the more political drug sentencing can remain, the more the "soft on crime" stigma can be utilized to thwart reform.
But nowadays it would be tough to recreate the must-punish mania of the Reagan era. In 1989 27 percent of Americans thought drugs were the nation's top problem, as opposed to one percent in 2007. And with drug use among teens in steady decline for more than a decade, parental paranoia has waned.
Similarly anachronistic is the administration's insistence that the system must never second-guess itself. Shappert declared that "without finality, the criminal law is deprived of much of its deterrent effect." This was conventional wisdom twenty years ago—but not today.
In 1984, Congress passed federal sentencing guidelines that impose a scoring formula that judges use to place sentences within fixed ranges of length. As Ronald Reagan enthusiastically noted, sentencing-by-numbers ensures "no nonsense federal judges." Second-guessing, in essence, was designed out of the system.
In recent years, however, the Supreme Court has all but gutted the federal sentencing guidelines. In 2005, the Court neutered an anti-defendant bias that had been built into the guidelines, ruling that formula-driven sentences could not be harsher than those supported by a jury alone. In a companion decision, the Justices demoted the guidelines from mandatory methodology to mere suggestions.
In December, the Supreme Court upheld the ability of judges to impose less severe sentences than the guidelines recommend. Now, not only are judges limited in their ability to ratchet up sentences, but they're also able to give shorter drug sentences without facing scrutiny.
So far, Democrats have already refused to bow to the Justice Department's efforts to scrap crack-sentencing reform. And in less than a year the current administration will be replaced by a new—and perhaps, more cooperative—successor.
Hillary Clinton has vowed to "go after" mandatory minimum sentences and Barack Obama has said he'll combat "the blind and counter-productive warehousing" of drug users. Mike Huckabee has said it's a "huge mistake" to imprison "people who really need drug rehab." Even John McCain wants to see more rehabilitation and thinks that first-time drug offenders shouldn't go to prison. Given the fact that 20 years ago politicians were scrambling to out-punish each other, these sentiments are a promising sign.
But for now the Justice Department is doing what it can to keep the Reagan-era ethos alive. Twenty years ago, Nancy Reagan said there was "no middle ground" when it came to drugs and that the only acceptable response was one of "unyielding and inflexible" opposition. Now when it comes to rigidity in drug sentences many players outside the Bush administration are just saying no.
Now we know why the call the secretary of the treasury Goldman the powderman.