Mandatory Sentence, Minimum Sense

Dear President-elect Clinton: Your wife Hillary has spoken eloquently about how painful it was for you to put your own brother behind bars, when you gave the authorities the green light to bust Roger Clinton Jr. for selling cocaine in 1984. And your brother, now drug-free and doing well, has said that you, and 15 months in federal prison, saved his life by breaking his cocaine habit.

Think about this: Your brother might well have served a mandatory prison term of at least five years, without parole, if the current federal drug sentencing laws had been in effect when he was arrested. And with a little bad luck-if, for example, his drug of choice had been crack cocaine-he could still be behind bars, serving a 10-year mandatory term.

What chance would a sentence like that have left Roger of salvaging a decent life? What purpose would it have served in the war against crime? Would it have been just?

This example should burn in your conscience until you do something about the most outrageous single source of injustice, waste, cruelty, and stupidity in the federal criminal-justice system today: the sentencing of non-violent, small-time drug offenders like Roger, by the thousands, to prison terms of five, 10, and even 20 years without parole, under the system of mandatory minimum sentencing laws that the Reagan and Bush administrations have whooped through Congress since 1986.

It is a system that has not reduced drug use and may well aggravate crime. It wastes scarce, costly prison space on people who aren’t dangerous. It clogs courts with unnecessary trials by leaving many defendants no incentive to plead guilty. It destroys the lives of many relatively minor drug offenders. It clearly discriminates against black and Hispanic defendants. It operates so mindlessly that it has spurred almost universal revulsion among the federal judges who see the system up close-including law-and-order conservatives appointed by Presidents Ronald Reagan and George Bush, who have been stripped of any discretion to separate the drug kingpins and career criminals who deserve long prison terms from the bit players who don’t.

In an ideal world, your first priority on the criminal-justice front should be to repeal these singularly counterproductive statutes and to reform the related sentencing guidelines, so as to restore a measure of discretion to federal judges to reserve draconian prison sentences for the worst criminals.

But there’s a political problem: The tiniest step in the direction of common sense and humanity would bring down a demagogic Republican clamor that you were going soft on crime. It would be a lie, of course. But given the ill-informed public enthusiasm for mandatory prison terms and the cowardice of legislators, it would send Democrats in Congress scurrying for cover and would cost you some political capital.

So political realism dictates that repealing the mandatory minimum laws will not be on the list of priorities for your first 100 days.

But you should at least push early and hard to purge the 1993 crime bill of new mandatory minimums and to insert into it some kind of safety valve, giving judges discretion (subject to appellate review) to depart from mandatory minimums when necessary to avoid gross injustice. And with your demonstrated genius for coalition building, you should be able to use the expert consensus against the mandatory minimum laws to educate the public and get broader reforms through Congress later.

 

If these abominable laws remain unchanged two years front now, you will have failed an important test of political courage and leadership.

Your campaign position that "it’s time to get tougher on crime by getting smarter about how to stop it" argues for repealing dumb laws that mandate, for example, 10 years without parole for everyone-including non-violent, 18:year-old boys with no previous offenses, and their tag-along girlfriends, too-who participates (however peripherally) in the sale of more than 50 grams (1.8 ounces) of crack. The drug plague has only worsened since Congress began adopting mandatory minimum sentences wholesale in 1986. As you said in response to questions from the ABA Journal, "We need to make sure that people who belong in prison are sent there and that people who do not need to be there are not taking up expensive space." (Emphasis added.)

You told the Fraternal Order of Police: "I would expect all judges I nominate to have the wisdom and discretion to impose sentences that are appropriate to the crime and to the defendant." But under the current laws, your judges most certainly will not have the discretion to do that. They, like the federal judges now serving, will complain bitterly that their discretion has been shifted to prosecutors and that they are forced to act as rubber stamps in a regime that wastes tax dollars by dispensing cruelty tempered neither by common sense nor by fairness.

The U.S. Sentencing Commission (a very tough-on-crime crowd) showed the perverse effects of mandatory minimum sentences in a comprehensive 1991 report: These laws have caused unwarranted sentencing disparities, in part because they prescribe sharply different sentences based upon small, arbitrary differences in, for example, the weight of drugs. They require the same sentences in widely divergent cases, often by subjecting low-level drug couriers to the same penalties as kingpins. And they have resulted in disproportionately long average prison terms for black and Hispanic defendants compared with those of whites who commit comparable crimes.

One reason for the racial disparities is that Congress has prescribed far harsher mandatory minimums for distributing crack cocaine, which is frequently used by black addicts, than for equivalent quantities of cocaine powder, which is more often used by whites.

Many of those now serving mandatory prison terms of five and 10 years are less culpable, and younger, than your brother was in November 1984, when at the age of 28 he pleaded guilty to fpur counts of selling cocaine and one count of conspiracy to sell it over a period of several months in 1983 and 1984.

If current law had been in effect then and your brother had gone to trial, a conviction would apparently have brought him a five-year mandatory minimum: The evidence indicated that Roger participated in at least nine related sales of cocaine, in quantities ranging from two to nine ounces. That adds up to well over the 500-gram (17.9 ounce) threshold that would now automatically trigger a five-year mandatory minimum term. While Roger might get a break (as he did eight years ago) for pleading guilty and testifying against a man to whom he had sold cocaine, then again he might not.

And if Roger had been dealing in crack instead of powdered cocaine, a conviction for any one of his two-ounce sales would (under current law) have required imposition of a 10-year mandatory minimum. The penalty would have been "enhanced” to 20 years without parole if Roger had had a prior drug felony conviction, however petty, and to life without parole if he had had two prior convictions.

The current regime recalls the situation that existed before 1970, when Congress wisely abolished an array of mandatory sentencing laws that were choking the federal criminal-justice system. As one Republican congressman said in support of the 1970 law to let judges be judges, it "will result in better justice and more appropriate sentences,…with actually more convictions where they are called for.”

The congressman was George Bush, who has more recently taken the cowardly low road of joining the demagogues who clamor for senseless mandatory sentences.

The question now is whether you, Bill Clinton, will also defer to the demagogues or will follow your own best instincts. You understood the injustice of draconian mandatory minimum sentences in 1985, when you refused to extradite a 19-year-old Little Rock, Ark., woman to New York until the state reduced its charges. She had helped her boyfriend smuggle 300 grams of cocaine, worth $30,000, from Venezuela into the United States to sell to their fellow students at Choate Rosemary Hall, a Connecticut prep school. You said it would be ”unconscionable" to imprison a young, non-violent, first-time offender for the 15 years without parole mandated by New York law for a conviction on the original charges.

You were right then. Will you do the right thing now, now that you will be presiding over a federal prison system teeming with more than 80,000 inmates, including many thousands-mostly black and Hispanic, young people raised in poverty- who are serving long mandatory sentences for crimes no more serious than those committed by your brother and by that kid from Choate Rosemary Hall?