A striking bipartisan consensus has emerged in the House of Representatives on the need to fix one aspect of the ”war” against drugs that has ravaged the lives and liberties of millions of Americans over the past 25 years.
This consensus was reflected in the June 24 vote, 375-48, to reform the draconian laws authorizing prosecutors and police to confiscate and forfeit money and property suspected of involvement in drug dealing and certain other crimes–and to keep the seized assets, in many cases, even after the owners have been exonerated of all charges.
But when it comes to an even more noxious product of the drug war–the barbaric federal and state sentencing laws that have helped triple since 1980 the number of incarcerated Americans, to almost 1.9 million–only 25 of Congress’s 535 members have gotten it right so far.
They are Rep. Maxine Waters, D-Calif., and the 24 others (mostly Congressional Black Caucus members) she has lined up to co-sponsor a bill to abolish the federal laws that establish mandatory minimum sentences for drug offenses.
These legally irrational, morally bankrupt statutes, together with their counterparts in the states, have led to the long-term incarceration of small-time, nonviolent offenders by the hundreds of thousands. They have been driven through Congress by a bipartisan stampede in every election year since 1986, as Democrats (including some of those Black Caucus members) have vied with Republicans in a game of phony-tough one-upmanship, with Presidents Reagan, Bush, and Clinton eagerly jumping onto the bandwagon.
Vice President Gore signaled his intention to be part of the problem, not the solution, in a July 12 speech proposing still more mandatory sentences (”tougher penalties”) for all kinds of crimes, along with various (more heavily publicized) gun controls.
Congress has pretty well exhausted the possibilities for cooking up new drug mandatory minimums: five years without parole for five grams (one-fifth of an ounce) of crack; 10 years for two ounces; twice as long for a second drug offense (even if the first was a single marijuana cigarette); five more years for selling (or giving) drugs to anyone under 21 (even if the defendant is 18); and dozens more. So Gore had to reach beyond vowing (yet again) to ”crack down on drugs.” In order to come up with new ways of stripping judges of their traditional sentencing discretion, he proposed mandatory minimums for crimes committed ”in front of a child” or ”against the elderly.”
It’s a testament to the prevalence of political cowardice that almost everyone in Congress, excepting Black Caucus members like Waters–a militant liberal with a safe seat whose inner-city black and Hispanic constituents have borne the brunt of the drug war’s excesses–is too terrified (or too ill-informed) to talk sense about drug sentencing.
There is certainly little disagreement among the experts that mandatory drug sentences have had little impact on either the drug trade or violent crime, while leading to cruelly excessive imprisonment for many small-time, nonviolent drug couriers and the like. That is the view of even the most tough- on-crime Reagan-appointed judges and the most hard-line academic advocates of long-term imprisonment of violent felons, notably professor John J. DiIulio Jr. of the University of Pennsylvania, a self-described ”crime-control conservative.”
Nevertheless, many Republican politicians–while outraged by abuses of the forfeiture laws, which affect property rights– still champion outrageous prison sentences for nonviolent offenders, a huge proportion of whom are black, Hispanic, and poor. Meanwhile, many Democratic politicians join in or stand mute, their sense of outrage deadened by fear of saying anything that could be demagogued as ”soft on crime.”
But the sudden bipartisan swing against the forfeiture laws may give some basis for hope that drug war hysteria is receding, and that federal and state legislators alike will come to appreciate the need to repeal the mandatory drug sentencing laws. These laws have devastated the lives and families of too many people who are not killers, not rapists, not robbers, and not dangerous.
People like Bobby Lee Sothen, a 23-year-old, small-time marijuana grower from West Virginia, who last year got five years in federal prison. And like Nicole Richardson, a 19-year-old college freshman from Mobile, Ala., who got 10 years in 1992 for telling an undercover federal agent posing as an LSD buyer where to find her boyfriend to make a payment. And like Monica Clyburn, a Florida welfare mother with a history of drug abuse, three small children, and a baby on the way, who got 15 years for filling out some federal forms while helping her boyfriend peddle his .22-caliber pistol at a pawnshop. (See NJ, 8/15/98, p. 1906.)
It is difficult to overstate how dramatically the long- term imprisonment of nonviolent as well as violent offenders has soared in this country since 1970–thanks largely to state statutes such as New York’s Rockefeller Drug Law and California’s ”three strikes” law as well as the federal mandatory minimums– or how deeply this has harmed our system of justice and our inner-city communities: * The rate of imprisonment in the United States has more than quadrupled over the past 30 years, from about 100 of every 10,000 people to about 450.
* In recent years, as many as 77 per cent of the people entering prisons and jails were sentenced for nonviolent offenses, according to a study by the Justice Policy Institute.
* The federal, state, and local governments spent six times as much on prisons and jails in 1997 ($ 31 billion) as in 1978 ($ 5 billion).
* We are locking up eight times as large a percentage of black people, and more than three times as large a percentage of Hispanics, as of whites. More than 70 percent of all new prison admissions are members of racial minorities. And almost half of all young black men from Washington, D.C. (to pick one big city), are in prison, on parole, on probation, on bail, or wanted by police.
* Federal judges spanning the ideological spectrum, stripped of their traditional discretion to fit the punishment to the crime and the criminal, have for more than a decade bitterly denounced the mandatory sentencing laws as engines of grotesque injustice.
What is there to be said in favor of mandatory minimum sentences? Not much–at least, not in the federal system, in which prosecutors can now appeal any unduly lenient sentences handed down by the relatively small number of soft-headed judges.
Many prosecutors argue that they can use their virtually unchecked de facto sentencing power to pressure small fish to finger bigger fish in the hope of being rewarded with reduced prison time.
There is some truth in this. But even so, the prosecutors’ leverage does not seem to have had much real impact on crime. After years of filling prisons with small fish, law enforcement officials still find most kingpins out of reach, and the drug trade flourishing. And as critics of the late, unlamented independent-counsel statute have come to appreciate, unchecked prosecutorial power is prone to abuse, injurious to liberty, and more likely to undermine than to promote respect for law.
Principled liberals should not need to be told this. And now comes John DiIulio, in the May 17 National Review, to point out that ”there is a conservative crime-control case to be made for repealing all mandatory-minimum laws now.” While stressing that he still wants to ”incarcerate the really bad guys,” DiIulio asserts that mandatory drug sentences can get in the way of that goal, and that ”the pendulum has now swung too far away from traditional judicial discretion” in sentencing.
In short, Maxine Waters is right. And then-Rep. George Bush was right–and wiser than he was to be as President–in 1970, when he joined in repealing the mandatory drug sentences then on the books, and said that letting judges fit sentences to crimes ”will result in better justice.”
Now, 29 years later, there’s evidence that many voters may be ahead of the politicians in seeing the excesses of the prison binge. A referendum in Arizona last year required that many first-time and second-time drug offenders be sent to treatment programs rather than prison.
Perhaps the time is ripe for principled conservatives like House Judiciary Committee Chairman Henry Hyde–who united to reform the forfeiture laws with Democrats such as John Conyers Jr. of Michigan and Barney Frank of Massachusetts, only months after brawling over impeachment–to form another bipartisan coalition. The goal should be to abolish mandatory drug sentences, once and for all.