In yet another signal that the war on drugs is losing momentum, the Senate Judiciary Committee approved a bill slashing federal mandatory minimum sentences Thursday, with some key Republicans allied with Democrats. Sen. Mike Lee (R-UT) and Sen. Richard Durbin (D-IL) co-sponsored the bill, which would reverse decades of long prison sentences for drug offenses and could retroactively reduce sentences for some crack cocaine offenders.
Crack sentencing has come under strong scrutiny because sentences for that drug, more often consumed by African-Americans, have been harsher than comparably serious drugs consumed by whites, such as heroin.
"Since the 1980s," notes the Drug Policy Alliance, "federal penalties for crack were 100 times harsher than those for powder cocaine, with African Americans disproportionately sentenced to much lengthier terms."
Acknowledging that disparity, Congress passed and the president signed a bill in 2010 that reduced the disparity between crack and powder cocaine mandatory sentences. But those reductions were not made retroactive.
On the day of the Senate vote, U.S. Department of Justice Deputy Attorney General James Cole signaled that the Obama administration would use clemency powers to reduce excessive sentences on its own. Cole delivered a speech Thursday to the New York State Bar Association asking lawyers and prison officials to compile commutation requests for those serving long terms for nonviolent, low-level offenses.
In December, President Obama commuted the prison terms of eight crack cocaine offenders, six of whom were serving life terms without possibility of parole.
First enacted in the 1980s and 1990s as part of an effort to snuff out drug abuse and drug dealing, the federal sentencing guidelines tied the hands of judges, resulting in extremely long sentences in many cases, often over the vigorous objections of the judges themselves.
Brian Phillips, a spokesman for Lee, said Lee’s interest stems from his time as an assistant U.S. attorney. “He saw firsthand how having a second or third relatively minor drug offense could result in a massive sentence that destroyed a family,” Phillips said. Lee’s interest also stems partly from his libertarian sympathies, but was largely driven from a family focused social conservative perspective, Phillips said.
The bill did not go in its current form as far as many had hoped. Earlier this year Sens. Rand Paul (R-KY) and Patrick Leahy (D-VT) had co-sponsored a measure that would have essentially removed mandatory minimums altogether by allowing judges to diverge from them when they saw fit. That bill went nowhere, and both Leahy and Paul supported Thursday’s compromise legislation.
Part of the compromise involved amendments that, paradoxically, would actually enhance mandatory minimums for sex offenses, domestic violence and terrorism. Lee opposed those amendments, Phillips said, because he felt the bill’s purpose was to reduce unduly severe sentences.
But the toughening amendments did not go far enough for Lee’s Utah colleague, Sen. Orrin Hatch, who was one of the five to vote against the bill in committee.
“The bill that passed the Judiciary Committee today is too expansive,” Hatch said in an email. He objected to the retroactive sentence reductions, fearing these would not be adequately vetted for risk.
“I also have concerns that cutting certain mandatory minimum standards could weaken incentives that are valuable in criminal investigations,” Hatch said, but said he hopes he can “work with my colleagues to make the bill better before it comes up for a vote before the full Senate.”
Disappointed but hopeful
One person with decidedly mixed emotions on the vote was Julie Stewart, who since 1991 has headed Families Against Mandatory Minimums, an organization she formed after her brother received a five-year term for a marijuana charge as a young man.
American expectations of long sentences has become so ingrained, Stewart said, that she often hears people say that her brother “only” got five years. “A lot of life happens in five years,” she responds. “Our father died while he was in prison and my brother wasn’t able to be there.”
As a political compromise, Stewart is happy with the bill, particularly the retroactive sentence reductions on crack cocaine. But she said that even victims’ rights groups oppose the stiffening of minimum sentences for domestic violence because, they argue, they discourage victims from reporting abuse.
Stewart notes a new guard/old guard thread in the Republican Party, with tea party senators like Rand, Lee and Ted Cruz (R-TX) supporting this legislation, while traditional conservatives like Hatch remain opposed.
Stewart said she regrets Hatch’s vote but remains hopeful he might be persuaded. “He has been very good on sentencing issues in the past,” she said, noting a law review article he wrote in 1993 that was critical of mandatory sentences.
“He was way ahead of the curve at that time,” Stewart said. “I was disappointed he didn’t support this bill, but I feel it’s like within his grasp that he could.”
Stewart was also pleased with James Cole’s speech in New York Thursday, but she also noted that the move toward clemency for excessive sentences is long overdue, as both Presidents Bush and Obama have been very stinting on commutations and pardons by historic standards.
“Once upon a time, Presidents granted hundreds of commutations, but today they’re about as common as winning the lottery,” Stewart said in a statement. “It’s encouraging to see the President wiping the dust off of this tool and targeting the most unjust of our many unjust sentencing laws: life without parole for a drug offense. There are plenty of nonviolent, rehabilitated people who don’t deserve to die in prison. But we need more than commutations. Congress and this administration should end mandatory life without parole sentences for nonviolent drug crimes.”