But a far more important imprisonment story gets less attention because it’s a running sore that rarely generates dramatic "news." That is our criminal-justice system’s incarceration of a staggering 2.3 million people, about half of them for nonviolent crimes, including most of the 500,000 locked up for drug offenses.

Forty percent of these prisoners are black, 20 percent are Hispanic, and most are poor and uneducated. This has had a devastating impact on poor black families and neighborhoods, where it has become the norm for young men — many of them fathers — to spend time in prison and emerge bitter, unemployable, and unmarriageable. (These numbers come from studies cited by Marc Mauer, executive director of the Sentencing Project, a reform group.)

America imprisons seven times as many people as it did in 1972, several times as many per capita as other Western nations, and many more than any other nation in the world.

Yes, violent criminals should be locked up for long enough to protect the rest of us. But the mass, long-term imprisonment of nonviolent, nondangerous offenders in recent decades and excessive terms for others has made us no safer while ruining countless lives and converting potentially productive citizens into career criminals.

The 13-year-old rapist and the 17-year-old serial robber-burglar who are serving life without parole in two Florida cases inspired impassioned comments from justices with opposing views. But the outcome may not have much impact on these two prisoners or anyone else. Even if the Court strikes down their sentences, the state will be free to resentence them to serve, say, 40 years before being eligible for parole, and thereafter to deny successive parole applications until they die. And even if the Court upholds life without parole, the state will be free in the future to relent and release them.

Meanwhile, the damage done by America’s prison binge over the past 30 to 40 years dwarfs the importance of all of the Court’s pending criminal cases.

The damage done by America’s prison binge over the past 30 to 40 years dwarfs the importance of all of the Court’s pending criminal cases.

To be sure, budget problems in recent years have forced some states to hold down their prison populations by relaxing drug sentences. And California is under federal court order to release 40,000 people from its badly overcrowded prisons. Perhaps the budgetary pressure will open more minds to the impressive body of research suggesting that imposing severe prison terms on more and more people is not the best way to fight crime.

Another glimmer of hope is that a bipartisan group of senators, with Obama administration support, is working to ratchet down the overpunishment of mostly nonviolent crack cocaine offenders, 80 percent of whom are black. Tens of thousands are now locked up under grotesquely excessive federal mandatory minimum sentences of five years (for simple possession of 5 grams of crack), 10 years (50 grams with intent to distribute), and more.

But the crack penalties are just the tip of an overpunishment iceberg. And although it’s not growing as fast as before, it’s not shrinking either. "What we’re seeing so far is just a slowing of growth — a tinkering around the edges," Mauer says.

At a cost of $60 billion a year, our prisons and jails do very little to counsel, educate, train, or otherwise prepare prisoners to get jobs and go straight after they’re released. They are barred from public housing, treated as outcasts by many employers, and often surrounded by other ex-cons in their neighborhoods. This makes for very high recidivism, with about two-thirds of those released being rearrested within three years.

The impact on black communities is especially dramatic.

• Blacks are imprisoned at a rate eight times as high as whites.

• Nearly 60 percent of black male high school dropouts, and nearly 30 percent of all black men (if current trends continue), will spend time behind bars — far more than in the worst days of segregation. The result: "In America’s inner cities, incarceration has become the more-likely-than-not norm, not the unthinkable exception," Georgetown University Law School’s David Cole recently wrote in The New York Review of Books.

• The number of drug prisoners increased elevenfold from 1980 to 1997, and the number of black drug prisoners more than quadrupled from 1985 to 1991, according to Cole. Not many of them fit the "drug kingpin" label used by politicians to justify long prison terms.

I don’t attribute these glaring racial disparities to racist animus. Blacks do commit highly disproportionate percentages of violent as well as nonviolent crimes. And some rich white men also get savagely severe prison terms, such as the 25 and 24 years — more than most murderers — imposed on former WorldCom CEO Bernard Ebbers and former Enron executive Jeffrey Skilling, whose appeal is now before the Supreme Court, respectively.

But it’s fair to say that our criminal-justice system is helping to create "a racially defined pariah class in the middle of our great cities," as Brown professor Glenn Loury says in his 2008 book, Race, Incarceration, and American Values.

The prison binge started out as a reaction to crime rates that began soaring in the 1960s, and the federal mandatory minimums were largely a response to the inner-city crack wars of the 1980s. But imprisonment rose more than crime, owing to adoption of draconian mandatory minimum sentences by state legislatures and Congress; restrictions on (and sometimes abolition of) parole; and other "tough on crime" policies.

The nascent countertrend noted above reflects not only budget pressures but also the efforts of reformers such as Sen. Jim Webb, D-Va.; Mauer; Julie Stewart, founder of Families Against Mandatory Minimums; and their counterparts at the state level. Although it has not yet reduced the prison population, there’s room for hope that it might.

How much could we reduce the prison population without turning loose a horde of violent predators? By a lot.

More than 20 states eased some criminal sentences between 2004 and 2006, including New York’s relaxation of its especially harsh Rockefeller drug law. Others have made it easier for well-behaved prisoners to win early release and diverted drug offenders from prisons to treatment programs. At least 19 states have also relaxed their felon disenfranchisement laws — one of the many indignities imposed on ex-prisoners who have served their time — since 1997.

At the federal level, there is an overwhelming policy case for abolishing all of the numerous mandatory minimum sentences that Congress adopted for drug offenses in 1986 and 1988, and relying instead on the common sense of the judges who know the facts of each case and the defendant’s history. Yes, some judges would be too lenient. But federal prosecutors can appeal lenient sentences.

So far, however, most of the Democrats who control Congress seem too worried about opening themselves up to unwarranted Republican attacks for being "soft on crime" to do away with mandatory minimums.

How much could we reduce the prison population without turning a horde of violent predators loose on the rest of us? By a lot.

Experts disagree about how much of the steep plunge in crime rates from about 1994 to 2004 is attributable to locking up so many criminals and how much it owes to demographics. But most of the estimated 1.2 million prisoners locked up for nonviolent offenses are not especially dangerous. Scholars including Mark Kleiman, a professor of public policy at the University of California (Los Angeles), contend that for violent as well as nonviolent offenders, long prison terms — which most potential criminals don’t expect to incur — do less to deter crime than would swifter and surer imposition of less onerous penalties. Even probation, Kleiman writes, can be a real deterrent if accompanied by tough conditions and oversight.

In his recent book, When Brute Force Fails: How to Have Less Crime and Less Punishment, Kleiman argues that the correct reforms would lead to "half as much crime and half as many people behind bars 10 years from now."

"Half as much crime" sounds pretty optimistic, in part because getting our criminal-justice system to do anything swiftly and surely would be a tall order. But reducing the number of people behind bars by several hundred thousand, or even 1 million, seems a reasonable goal.

After all, an incarcerated population of 1.3 million (down from 2.3 million) would still be four times as many — and well over twice as many per capita — as in 1972, when we had 326,000 prisoners.

But budgetary pressures and reformers can move us only so far toward more-sensible sentencing policies unless and until politicians become more enlightened about how best to fight crime.

And we cannot count on much help from the Supreme Court, which in 2003 upheld no-parole sentences, under California’s "three strikes" law, of 50 years for shoplifting $150 worth of children’s videos and 25 years for stealing three golf clubs.

This article appeared in the Saturday, November 14, 2009 edition of National Journal.

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Mukasey has resorted to counterfactual fear-mongering in calling for Congress to roll back the U.S. Sentencing Commission’s wise, unanimous decision last year to reduce retroactively the especially cruel and counterproductive prison terms provided by its sentencing guidelines for crack cocaine. The commission’s action has made 19,500 federal prisoners serving crack sentences — more than 80 percent of whom are black — eligible at some point to seek sentence reductions averaging just over two years.

The commission’s decision, which became fully effective on March 3 over Mukasey’s objection, was a step toward slowing the sixfold increase since 1970 in the number of people behind bars in the United States, from 330,000 to 2.3 million, more than in any other nation. The impact of this prison binge on hundreds of thousands of young black drug offenders with (in most cases) no record of violence has been especially harsh. The seven-member commission has also urged Congress to reform the savagely severe federal mandatory minimum sentencing laws for crack.

But Mukasey objected to the retro-active sentence reductions, asserting in a February 25 speech to the Fraternal Order of Police (and on other occasions) that these 19,500 crack offenders "are some of the most serious and violent offenders in the federal system."

This was, at best, a gross exaggeration glaringly unsupported by the statistics that Mukasey cited. So was Mukasey’s earlier suggestion in congressional testimony that the Sentencing Commission’s action would make "many … violent gang members … eligible for immediate release into communities nationwide."

The attorney general omitted the fact that in 2005, 19 out of 20 (94.5 percent) of crack offenses involved no violence and nine out of 10 (89.6 percent) also involved no threats of violence, according to the Sentencing Commission’s authoritative statistics. He also failed to note that only 1 percent of crack prisoners eligible for immediate release were classified as career criminals.

It’s true, as Mukasey stressed, that nearly 80 percent of the crack offenders who might get released before completion of their guideline sentences have prior criminal records. It’s also true that about half were found to have dealt with substantial quantities (over 50 grams) of crack. And it’s further true that for close to one-third of these crack offenders, the courts imposed harsher sentences because they or an accomplice had a gun or other weapon.

Of course, that statistic also means that two-thirds had no weapons at all. And the vast majority of the other one-third (including those whose weapons were unloaded, inoperable, or legal) were street dealers who neither used nor threatened to use their weapons — and who cannot even be considered for possible release until after they have served their time for any weapons offenses.

Nor did Mukasey take into account that no prisoner will be freed early unless and until a federal judge approves his release, after considering any record of violence or threat to public safety and any other objection that prosecutors might have. Instead, the attorney general told the U.S. Conference of Mayors on January 24 that "a sudden influx [of released prisoners into communities] could lead to a surge in new victims."

This is a false alarm. "His position presupposes that judges will be irresponsible in exercising their discretion," as Judge Reggie Walton of the U.S. District Court for the District of Columbia — known for being tough on crime — has said.

In fact, most of the petitions for sentence reductions will be spread out over more than 10 years. The average eligible prisoner is serving a sentence of more than 12 years and could seek an eventual reduction of about 27 months. Most could not seek immediate release.

The commission’s decision "is a modest first step to correct decades of injustice," says Mary Price, vice president and general counsel of Families Against Mandatory Minimums, a sentencing reform group. "Instead of repeating misleading and repudiated claims that will only spread fear, the attorney general should be reassuring communities that the nation’s prosecutors are working to identify and oppose the release of any prisoners who might pose a threat." Drug offenders have lower recidivism rates than violent criminals or any other group of prisoners, Price noted.

The sorry history of crack sentencing is aptly summarized on the website of the Sentencing Project, another reform group:

"The 1986 and 1988 Anti-Drug Abuse Acts established excessive mandatory penalties for crack cocaine that were the harshest ever adopted for low-level drug offenses and created drastically different penalty structures for crack cocaine compared to powder cocaine…. The law has diverted precious resources away from prevention and treatment for drug users and devastated communities ripped apart by incarceration."

The rationale for the differential penalties is that crack cocaine, which is smoked, is cheaper, produces faster highs and lows, and is somewhat more often associated with violence than is powder. Such differences might arguably justify somewhat tougher sentences for crack. But crack is made from powder, the substances are pharmacologically identical, and the onetime clamor over special harm to "crack babies" was off base; studies show that pregnant women who use alcohol and tobacco cause more damage to their children.

The huge crack powder sentencing differentials are wildly disproportionate to any differences in the harms caused. For example, simple possession of 5 grams of crack (the weight of a nickel) brings the same five-year mandatory minimum sentence as selling 500 grams of powder cocaine. That’s why most crack prisoners are low-level street dealers.

The fact that more than 80 percent of crack prisoners and only 27 percent of powder-cocaine prisoners are African-Americans makes the unfairness of the crack penalties especially glaring and feeds the corrosive perception among many blacks that the criminal-justice system is racist.

"Instead of reducing drug addiction and crime," Rep. Charles Rangel, D-N.Y., testified at a February 26 House Judiciary subcommittee hearing, the crack mandatory minimums "have swelled our prisons, fueled a racial divide that jails young black men at disproportionate rates, left a generation of children fatherless, and driven up the costs of a justice system focused more on harsh punishment than rehabilitation."

All this helps explain why so many of those who once supported the harsh crack sentences — among them President Clinton and Sens. Joseph Biden, D-Del., Orrin Hatch, R-Utah, and Jeff Sessions, R-Ala., a passionate drug warrior who supports severe sentences for genuinely dangerous drug dealers — have expressed deep regret and called for reform. Leading tough-on-crime conservative scholars, including James Q. Wilson and John Dilulio Jr., have also called for reforming crack sentencing.

Even President Bush — a reformed alcoholic with a drunk-driving conviction — said in January 2001 that "long minimum sentences for the first-time users may not be the best way to occupy jail space and/or heal people from their disease," and "I don’t believe we ought to be discriminatory" by punishing crack offenders more severely than powder cocaine offenders. But Bush has not had the courage of his convictions.

More broadly, it has long been clear that Congress’s imposition since 1986 of lengthy mandatory minimum prison terms even for bit players has failed to make much of a dent in the drug problem. The kingpins supposedly targeted by these laws rarely get caught. Instead, we spend billions of dollars to warehouse scores of thousands of nonviolent, nondangerous people who made mistakes, and who could become productive members of society if given drug treatment and a second chance backed up by the threat of incarceration if they sell drugs again.

So why is Mukasey, a respected former federal judge who ought to know better, spouting the same tired alarmism about crack defendants that has emanated from the Justice Department for two decades?

Perhaps because a new attorney general with less than 11 months left in office has to pick his battles rather than questioning every dumb Justice Department policy that he inherited.

But this policy is worse than dumb. It is ruining thousands of lives that could be salvaged under a humane sentencing policy. It is decimating black communities. It is undermining confidence in the fairness of the justice system. And it is wasting tax dollars.

Fortunately, Mukasey has not ruled out working with congressional reformers to consider reducing mandatory crack sentences for future defendants. It’s the least he could do to redeem his unpromising start on this vital criminal-justice issue.

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The 205th DNA exoneration since 1989 was recorded earlier this month by the Innocence Project, a group of crack defense lawyers who have made such cases their mission. The exonerated prisoners—including 15 who had been sentenced to death—have been found innocent by courts, prosecutors, or governors based on post-conviction DNA testing.

But America has been too slow to appreciate that the DNA exonerations, and other evidence, suggest that many thousands of other wrongly convicted people are rotting in prisons and jails around the country. And our federal, state, and local governments and courts have done far too little to adopt proposed criminal justice reforms that could reduce the number of innocent people convicted while nailing more of the real criminals.

The case of the most recent DNA exonoree, Byron Halsey, was typical: Based on a confession full of obviously false details, extracted by high-pressure interrogation, he spent 19 years in prison in New Jersey for two heinous child murders committed by another man in 1985. Halsey was able to prove his innocence only after a 2002 New Jersey law forced reluctant prosecutors to give his counsel access to DNA evidence. In Halsey’s and some 70 other DNA-exoneration cases, DNA also helped to establish the guilt of the real perpetrators. All or almost all had committed other violent crimes before being caught.

The kind of DNA evidence that can conclusively prove innocence or guilt is available only in a small fraction of cases, mainly rapes and rape-murders in which sperm is recovered. But these cases are the tip of the iceberg. Extrapolation from DNA and other exonerations suggests that the overall error rate in violent-crime prosecutions is probably much higher than the estimates of less than 1 percent offered by many criminal-justice officials.

In a stunning non-DNA case that shows how low law enforcement can go, a federal District judge in Boston ordered the government on July 26 to pay $102 million in damages to victims of the FBI’s "outrageous" role in framing four men for a 1965 gangland murder. The four spent a combined total of 109 years in prison. Two died there.

"FBI officials up the line allowed their employees to break laws, violate rules, and ruin lives," wrote the judge, Nancy Gertner. She found that the FBI had known all along that a mob hit man named Joseph Barboza was lying when he claimed he saw the four men kill a mobster named Edward Deegan. Barboza and the FBI protected the real killer, Vincent Flemmi, because Barboza and Flemmi were FBI informants.

Although that was decades ago, the FBI (like most police agencies) still insists on a policy—its virtual prohibition of tape-recording interviews—that allows agents to conceal or distort what suspects and witnesses say. The usual motive is not to frame innocent people but to fit evidence to preconceived (and often mistaken) theories of the case.

The FBI has defended its policy on the grounds that taping might deter suspects from talking and that jurors might be offended to hear police using lawful but deceptive interrogation tricks such as lying to suspects and feigning sympathy. But the first concern seems far-fetched in most cases and the second is illegitimate. Refusing to tape interviews hides important evidence from juries as well as lending itself to abuse.

Police and/or prosecutorial misconduct appears to figure in more than half of the 205 convictions that DNA has proven false. Specific reasons for those convictions are catalogued in "Judging Innocence," a study by Brandon Garrett, a law professor at the University of Virginia, slated for publication in January in the Columbia Law Review. Mistaken eyewitness identifications—often due to police subtly pointing witnesses toward the people the cops suspect—figured in 79 percent of these false convictions. Flawed or corrupt testimony by scientific "experts" (about hair, blood types, and the like) figured in 55 percent. False confessions, mostly by juvenile defendants, figured in 16 percent.

What percentage of the 2.2 million men and women locked up in state and federal prisons and local jails are actually innocent of the charged crimes? This is not knowable with any confidence. But we can extrapolate from a few data points.

Samuel Gross, a University of Michigan law professor, has calculated that 2.3 percent of all prisoners sentenced to death between 1973 and 1989 have been exonerated and freed. His research suggests that the vast majority in fact did not commit the crimes. And an unknown number of innocents have not been exonerated.

Does this suggest that we may have 50,000 innocent prisoners (2.3 percent times 2.2 million) in this country? Possibly, but not necessarily. Gross and Barbara O’Brien of Michigan State Law School stress in another forthcoming article that capital cases (and the DNA exonerations) are not representative of false convictions in general.

On the one hand, for example, the percentage of actual innocents may be higher among capital murder defendants—virtually all of whom go to trial—than among the 90 percent of violent-crime defendants whose cases end in plea bargains.

On the other hand, a much higher percentage of, say, robbery convictions than of capital murder convictions are based on unreliable eyewitness identifications. So perhaps the robbery error rate is much higher than 2.3 percent. And it’s clear that most people wrongly convicted of lesser crimes are far less likely to win exoneration than are death-row inmates (who get much better post-conviction legal representation) and rape convicts (when DNA evidence is available).

Gross and others have also found that a very disproportionate number of exonerated prisoners are black or Hispanic. Discrimination no doubt accounts for some of this. So does the especially high error rate in cross-racial identifications, which creates special risks for black men wrongly accused of raping or robbing white people.

But well-off white men are not exempt from wrongful prosecution. This was spectacularly illustrated by the fabricated rape charges against three innocent Duke lacrosse players. Durham District Attorney Mike Nifong falsely demonized them as rapists, racists, and "hooligans," thereby gaining enough black votes to win what had been an uphill election battle. Nifong (who is white) also rigged a photo-identification process to frame the three for a nonexistent crime, hid DNA proof of innocence, and lied to the public and the court for many months before North Carolina Attorney General Roy Cooper took over the case and declared the defendants innocent.

Nifong has been disbarred and still faces a contempt-of-court charge. But his richly deserved fate is almost unheard-of. Most state bars and judges have given passes even to prosecutors who have hidden or falsified evidence to put innocent men and women on death row.

The DNA exonerations have spurred reforms by some states, but most still use shockingly unreliable police practices.

The good news, according to the Innocence Project, is that 42 states and the District of Columbia now require that inmates be given access to any DNA evidence; 22 (plus D.C. and the federal government) require preservation of DNA evidence; and 22 (plus D.C. and the federal government) compensate victims of false convictions.

But only three states (and some cities) have adopted the reforms to eyewitness procedures—such as excluding officers who know which person is the suspect, among other safeguards—that experts say are necessary to prevent false identifications. And only the District of Columbia, nine states, and some 500 localities keep police honest by requiring them to tape interrogations.

The courts, meanwhile, have "performed miserably in ferreting out the innocent" convicts, as Adam Liptak observed in a July 23 New York Times column. The Garrett study shows that the Supreme Court refused to hear the appeals of 30 of the first 200 prisoners who were later exonerated and rejected the one appeal it did hear.

The justices, and Congress, have also made it difficult for state prisoners to seek relief in lower federal courts. Most recently, on June 15 the conservative high court majority slammed the door on a murder convict because his lawyer had filed his appeal three days late—on the mistaken advice of a federal District judge. This decision seems perverse, especially in an era of DNA exonerations when, as a Justice Department commission observed in 1999, "the strong presumption that verdicts are correct, one of the underpinnings of restrictions on post-conviction relief, has been weakened."

Indeed, so formidable are the procedural obstacles facing falsely convicted innocents that only 10 percent of the 205 DNA exonorees made their innocence the basis of their initial appeals—and none was successful. This reflects the appeals courts’ almost exclusive focus on whether the prosecutor or judge made procedural errors and almost complete deference to findings of guilt by juries and trial judges. They should defer less.

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Clement’s and Breyer’s laments came during oral arguments on October 4 in two new cases before the high court that show every sign of being the wrecking balls that will destroy the federal sentencing guidelines that have been in effect for 17 years. The crane operators for this destruction will be the ideologically eclectic group of five justices that in June, by a 5-4 decision, struck down Washington state’s similar sentencing system in a case called Blakely v. Washington. Barring a late conversion, the majority seems bent on destroying a critical pillar of the federal edifice, possibly as soon as November.

Almost lost in the teeth-gnashing is that the federal sentencing system has been an engine of gross injustice for a long time, thanks mainly to multiple, destructive interventions by Congress and the Justice Department. To wit:

• Tens of thousands of nonviolent first offenders are serving savagely severe prison terms of five, 10, even 20 years, mostly for drug crimes.

• Many far more dangerous criminals get off far more easily.

• Unjust disparities remain commonplace, with some defendants serving prison terms several times as long as co-defendants convicted of similar crimes.

• Black and Hispanic defendants get the harshest treatment, in hugely disproportionate numbers, mainly because of the especially outlandish crack-cocaine penalties.

• Sentencing power has been shifted from neutral judges to prosecutors, whose choice of what charges to bring largely dictates the sentences of defendants who are convicted.

• The federal prison population has soared more than sixfold since 1980, to more than 150,000 inmates, of whom two-thirds are black or Hispanic and more than half are nonviolent and drug offenders. In all, more than 2 million people are incarcerated in the United States, up from 500,000 in 1980.

But the Supreme Court has so far suggested no remedy for the federal sentencing system’s metastasizing cancer: the excessive mandatory-minimum sentences enacted by Congress, and other legislative efforts meant to hogtie judges. Instead, the Blakely majority’s big swing is aimed at a pimple on the nose of the system: the assignment to judges, rather than juries, of the power to decide that any aggravating fact can be used to increase a defendant’s sentence above the maximum ordinarily specified by the sentencing guidelines. (For example, a defendant convicted by a jury of selling cocaine gets more time than the ordinary guideline range allows if the judge finds that he was also carrying a gun.)

And in its zeal to broaden defendants’ jury-trial rights, the majority seems likely to provoke Congress into making the system even worse, especially for the very defendants it says it wants to protect.

Congress has been doing just that ever since a coalition of liberals and conservatives adopted the nobly intentioned Sentencing Reform Act of 1984. The act was designed to curb the almost limitless discretion long enjoyed by judges to impose wildly disparate penalties for similar crimes, a system that left defendants’ fate largely to the luck of the draw.

The 1984 law created the seven-member U.S. Sentencing Commission to draft detailed rules ("guidelines" is a misnomer) setting a sentencing range for every federal crime, based in part on the judge’s own findings of aggravating or mitigating facts. The guidelines took effect in 1987. No longer would soft judges be free to coddle serious criminals, or hanging judges be free to hammer far less dangerous offenders. At least, that was the theory.

But almost from the start, Congress has repeatedly frustrated the 1984 law’s objectives while skewing the system toward mindless severity. It has adopted a raft of mandatory-minimum sentences far higher than the penalties that the expert Sentencing Commission had (or would have) specified, especially in drug and gun cases. It has also micromanaged the commission, rebuffed its recommendations, and curbed what was left of judges’ discretion to reduce sentences based on mitigating factors. Most recently came last year’s so-called PROTECT Act, propelled by the lobbying of Attorney General John Ashcroft’s Justice Department.

These destructive laws reflect the congressional temptation to pander to voters by using rhetoric about violent criminals and drug kingpins to push through long mandatory sentences whose actual impact would horrify many of the same voters: The sentences destroy the lives of nonviolent, non-dangerous, flesh-and-blood defendants who might end up as productive citizens if given a brief prison term and a new chance in life.

Meanwhile, the Sentencing Commission, with Congress breathing down its neck, has made its own guidelines so rigid, detailed, and complex that judges find themselves computing prison terms by arcane formulas that often offend their own sense of justice. The result, says Ron Weich, former counsel to the Sentencing Commission, is that "the federal sentencing system is worse today than it was in 1984. The guidelines alone could have made things much better, but Congress never let the commission do its job."

Ashcroft and some others credit tougher sentences with the drop in crime rates since 1980. But comparisons over time and among states undermine this thesis and show that the prison binge has gone far beyond serving any reasonable crime-fighting purpose. Indeed, most conservative, tough-on-crime judges, prosecutors, and scholars, as well as liberals, see the mandatory minimums as mindlessly harsh toward nonviolent bit players in drug deals and to many other defendants.

Amid such glaring injustices, hardly anybody saw the residual power of judges to increase guideline sentences as a big problem until four years ago. That was when the Supreme Court handed down a potentially revolutionary decision called Apprendi v. New Jersey in which the Court invalidated the Garden State’s hate crime statute because it allowed judges to increase a sentence if they (rather than juries) found that a crime was indeed motivated by racial or other bias. The Court extended Apprendi this June by declaring in Blakely that any fact that increases the upper limit on a judge’s sentencing discretion must be proved to a jury beyond a reasonable doubt. Although Blakely involved a state statutory maximum, its broad language also seems applicable to the federal sentencing guidelines.

What would or should be left of the sentencing guidelines if the Court continues in this vein in the two new cases is much in dispute. But given the messiness of all possible approaches, nobody doubts that Congress would subsequently intervene. And the easiest way for Congress to avoid constitutional problems would be to return to the pre-1984 days when maximum sentences were so high that judges could add as much prison time as they (rather than juries) wanted for almost any reason they chose. Congress would also probably keep adding mandatory minimums to preclude judicial leniency no matter how strong the mitigating facts.

The mystery is why the five justices in the Apprendi and Blakely majorities would want to bring about something like that. Why would liberals John Paul Stevens, Ruth Bader Ginsburg, and David Souter, as well as conservatives Antonin Scalia and Clarence Thomas, set in motion a demolition — in the name of protecting defendants — that seems destined to bring still more-excessive prison terms while destroying any hope of consistency in treatment of similar defendants?

…

Clarification: My criticism of professor Cass Sunstein in a September 25 column — for having "got religion" by harshly criticizing the Supreme Court’s Bush v. Gore decision a few weeks after his far less critical initial comments — was based on a misinterpretation, according to Sunstein. Although he has always seen the decision as being both helpful in stabilizing a chaotic situation and flawed by very bad legal reasoning, he says, he has never considered it "illegitimate, undemocratic, and unprincipled." I quoted those words from a short Sunstein article on how future historians would see Bush v. Gore. But he says this article was "not an expression of my own views" and "obviously whimsical." That is not obvious to me from the article itself. But now that I know Sunstein’s intended meaning, I withdraw my criticism.
 

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But there may not be much of a second chance for the tens of thousands of nonviolent offenders and others who are relatively harmless when they enter prison but deeply scarred — in many cases, on their way to becoming career criminals — when they leave five, 10, or 20 years later. One of the reasons is a push by Attorney General John Ashcroft and congressional Republicans to give Ashcroft’s Justice Department nearly complete control of the sentencing process and force federal judges to act as rubber stamps, in order to ratchet up the already excessive prison terms for a wide range of federal crimes.

Congress voted last April, with Ashcroft’s strong support but precious little debate, to require the federal Sentencing Commission to slash federal judges’ already quite limited discretion to give defendants the sentences they deserve in the many cases in which mitigating circumstances call for less severity than is suggested by the applicable federal sentencing guidelines. When the seven-member commission reluctantly complied, an Ashcroft subordinate complained that it had not gone far enough and threatened to go back to Congress. The new law also ordered that judges’ departures from the guidelines be reported to the attorney general and Congress — a measure that could threaten judicial independence and "intimidate individual judges," in the words of Chief Justice William H. Rehnquist, a lifelong hard-liner on crime. And a third provision essentially required federal prosecutors to throw the book at criminal defendants by pressing for the most severe sentence possible, no matter what mitigating circumstances there may be.

This so-called Feeney Amendment, named for Rep. Tom Feeney, R-Fla., takes a long step toward depriving judges, and even prosecutors, of all discretion to fit the punishment to the individual crime. Not only is it mindless, it is also hypocritical: Ashcroft and his allies have lionized one judge who went to dubious extremes nine years ago to give a break to a man convicted of burning a cross on an interracial couple’s lawn.

That judge is Charles W. Pickering Sr. of Mississippi, a conservative, controversial Bush nominee for a federal appeals court seat who accepted a recess appointment on January 16. Pickering has been assailed by Democrats for (among other things) pressuring federal prosecutors to spare the cross-burner the seven-year mandatory minimum prison term required by federal law. Had a liberal Democratic nominee done the same — for, say a 20-year-old first offender facing 10 years in prison for having 2 ounces of crack cocaine — many of the same Republicans who have lionized Pickering would be trashing him as soft on crime.

It so happens that Pickering was right to see seven years as far too severe a penalty. The 20-year-old defendant had no criminal record or history of racist conduct and was the least culpable of the drunken trio who had burned the cross. The 27-month sentence that Pickering ended up giving him was more than enough. But if this cross-burner deserved a break, then the same is all the more true of the tens of thousands of poor, mostly black and Hispanic kids and others facing long prison terms for less-serious crimes.

For centuries, one of the cornerstones of Anglo-American law has been the principle that within broad legislative limits, convicted defendants’ sentences should be set by judges familiar with the facts and circumstances and insulated from political passions. Congress adopted the Sentencing Reform Act of 1984 to fix a big flaw in this healthy constitutional tradition: Equally culpable defendants convicted of similar crimes often received quite different sentences because of the disparate sentencing practices of various judges. The 1984 law created the Sentencing Commission, made up of judges and other experts, to set presumptive sentencing guidelines in the form of a detailed grid taking into account the relative seriousness of the crimes, and the defendants’ roles and criminal histories. It also allowed both prosecutors and defendants to appeal allegedly unwarranted departures from the guidelines.

Well-intentioned though it was, the 1984 law overshot its mark by making it harder than it should be for judges to justify departures from the guidelines. Then the crack-cocaine-driven crime wave of the late 1980s so alarmed voters that Congress rushed to require ever harsher mandatory minimum prison terms for a wide variety of drug offenses and other crimes — five years for a minuscule 5 grams of crack; 10 years for 2 ounces; and so on, up to life in prison for repeat offenders. These mandatory minimums overrode the sentencing guidelines, required penalties that proved grotesquely excessive in many individual cases, filled federal prisons with nonviolent offenders, and reduced judicial discretion even more than the 1984 law had done. Then, last year, the Feeney Amendment moved toward eliminating judicial discretion entirely in all federal cases.

The effect of all this has been to shift more and more of the core judicial power to determine individual sentences from judges to prosecutors, who can impose a mandatory sentence upon one defendant and show leniency to the next by choosing among a wide variety of possible charges and giving breaks to defendants who cooperate against others. This change is very much for the worse: While judges are supposed to be neutral arbiters dispensing fair and impartial justice, prosecutors have a natural institutional bias toward severity.

But Congress and Ashcroft don’t even trust the prosecutors. Ashcroft underscored this in July with a directive that came close to ordering all federal prosecutors to seek the most severe possible sentence in virtually every case, with a few exceptions including cases in which the defendant has information to trade.

Even many conservative, tough-on-crime federal judges have long deplored this trend toward mindlessly severe sentences. Some have stepped down to avoid having to impose sentences that they consider unjust. And in September, the 27 federal judges on the policy-making Judicial Conference of the United States called unanimously for repeal of the Feeney Amendment.

Judges such as Rehnquist are not the only tough-on-crime hard-liners who can see that the punitive trend has gone too far. So can some conservative Republicans in Congress and almost all scholars, including conservatives such as James Q. Wilson and John J. DiIulio Jr., the former head of Bush’s faith-based initiative office. DiIulio, a self-described "crime control conservative" who wants to "incarcerate the really bad guys," wrote in 1999: "The nation has ‘maxed out’ on the public safety value of incarceration," and the "pendulum has now swung too far away from traditional judicial discretion."

Disregarding this expert consensus, the Clinton administration supported Congress’s ever more rigid sentencing regime out of political cowardice. Now Ashcroft and Congress have carried this usurpation of judicial power to new extremes. The ostensible reason for the Feeney Amendment was that judges had departed downward from the sentencing guidelines more and more frequently since 1991. This was true — but mainly because Congress had made the guidelines too harsh, as Supreme Court Justice Anthony Kennedy stressed in a speech last August. And while a small minority of federal judges probably are too soft on crime, prosecutors can always appeal unduly lenient sentences. The real reasons for the Feeney Amendment, I suspect, were political opportunism and the unreasonably punitive philosophies of Ashcroft and his allies. Whatever the reason, this sentencing regime is laying waste to many young lives, and it may increase crime in the long run by turning relatively harmless, potentially salvageable young offenders into prison-hardened predators.

The irony of all this pandering to voters’ most punitive instincts has been to require sentences that would seem excessive or even outrageous to most of the same voters, in thousands of cases, if they knew the detailed facts. It’s one thing to vote for a candidate who pledges tough mandatory sentences for drug kingpins; it’s something else to see those sentences applied to the poor, hapless losers and kids who often get swept into the net.

President Bush, himself a reformed drinker, said in January 2001 that "long minimum sentences for the first-time [drug] users may not be the best way to occupy jail space and/or heal people from their disease." He should tell his attorney general. 

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So people should take notice when Sessions says that the penalties for crack cocaine have proved to be too severe and "we ought to change them." He is especially critical of a provision mandating the same five-year minimum prison term for possessing (or for selling) a measly 5 grams of crack-"the weight of one nickel," Sessions notes in an interview-as for selling 500 grams of powder cocaine. "The 100-to-1 disparity between crack cocaine and powder cocaine, which falls hardest on African-Americans [who constitute more than 90 percent of crack users], is simply unjust," Sessions asserted in December, while proposing a bill to decrease the penalties for nonviolent, low-level crack defendants. He would also require more prison time for "the worst and most violent drug offenders."

Nobody could plausibly call John J. DiIulio Jr. soft on crime, either. The University of Pennsylvania criminologist is a self-described "crime-control conservative" who wants to "incarcerate the really bad guys." He was congressional conservatives’ favorite expert advocate of tougher prison sentences years before he spent seven months in 2001 as head of President Bush’s faith-based initiative office. But DiIulio had come to see the unfairness and ineffectiveness of the penalties for crack (and other drugs) by 1999, when he wrote, "The nation has `maxed out’ on the public safety value of incarceration," and "there is a conservative crime-control case to be made for repealing mandatory-minimum drug laws now." Such a repeal would move us a healthy notch back toward letting judges do what they do best: fit the penalty to the crime and the individual criminal.

But Sessions, his co-sponsor Orrin G. Hatch, R-Utah, and DiIulio are apparently not tough enough for the Bush Justice Department, which is opposing any change in the crack penalties. It prefers to perpetuate a regime that has packed federal prisons-at an annual cost to taxpayers of more than $20,000 per inmate-with thousands of nonviolent, relatively harmless bit players in small-time crack deals. This puts the administration out of step not only with Sessions, Hatch, and Diulio, but also with most conservative as well as liberal federal judges, virtually all serious scholars (including conservative crime-control guru James Q. Wilson), and the U.S. Sentencing Commission, which is expected to recommend lower crack penalties in a report due to Congress on May 15.

The Justice Department is also at odds with Bush himself, who said in January 2001, "Long minimum sentences for the first-time users may not be the best way to occupy jail space and/or heal people from their disease," and "I don’t believe we ought to be discriminatory" by punishing crack offenders more severely than powder cocaine offenders.

What explains the administration’s change of heart? It’s not entirely clear. But Attorney General John D. Ashcroft was once one of the Senate’s most merciless proponents of harsh mandatory sentences, not only for crack but also for a wide range of other drug crimes. In 1998, he helped to dramatically hike the already-severe penalties for methamphetamines. These penalties apply not only to career criminals but also to folks such as 40-year-old Shellie Langmade of Minnesota. For helping her ex-husband, her sister, and her sister’s boyfriend make methamphetamine for their own use and for sale to a few friends, she was given a 10-year mandatory sentence-one denounced as "unconscionable and patently unjust" by the U.S. district judge in the case.

Meanwhile, the Justice Department is urging the Supreme Court to uphold California’s draconian "Three Strikes" law by ratifying a heroin addict’s sentence of at least 50 years to life-more than most murderers get-for shoplifting $153.54 worth of videotapes from two Kmart stores. The statute subjected the man to what a federal appeals court called this "cruel and unusual punishment" because he had been convicted in 1982 of two nonviolent home burglaries and later of carrying a small amount of marijuana. The Court will hear the Justice Department’s appeal this autumn.

Under the current federal sentencing provisions, defendants who possess, sell, or help to sell 5 grams of crack cocaine receive prison terms averaging 5.4 times as long as those who sell 5 grams of powder cocaine, according to a recent Justice Department study. In cases in which the defendants have little or no criminal history, crack sentences for five grams average 8.3 times as long as powder sentences.

The five-years-for-five-grams provision applies not only to dealers but also to mere users of crack-many of whom pose no more danger to society than, say, President Bush’s niece Noelle, daughter of Florida Gov. Jeb Bush. She was arrested on January 29 for the felony offense of trying to use a false prescription to buy the anti-anxiety drug Xanax. She was sent not to prison but to a residential drug treatment program. This was appropriate. It would be barbaric to give a substantial prison term to a mere addict such as Noelle. It is no less barbaric to lock up for five years countless mere addicts whose drug is crack. Most are no more violent than prescription drug abusers. But crack users seem to be too poor and politically voiceless to get any breaks from "compassionate conservatives."

The Justice Department argues that the crack penalties are just right and that, if anything, the powder cocaine penalties should be increased. "Lowering crack penalties now would simply send the wrong message-that we care less about the people and the communities victimized by crack" than about crack dealers, Deputy Attorney General Larry Thompson told the Sentencing Commission on March 19. "Crack cocaine is associated with much greater dangers than powder," he added, because it is more psychologically addictive, cheaper, more accessible to poor people, and more "associated with violent crime."

This was at best a considerable exaggeration. Crack is, after all, made from powder cocaine. Crack smoking rarely if ever induces violent behavior, expert studies have found; the public perception that it causes more violence than other forms of drug abuse comes from the bloody wars among gangs vying to control the emerging crack markets, which were largely a phenomenon of the 1980s. The clamor over unique harms to "crack babies" proved to be a myth: Crack taken by pregnant women causes less harm to their babies than alcohol or tobacco, a leading medical expert told the Sentencing Commission this year. While poor crack smokers find it harder than rich cocaine snorters to support their habits without resorting to crime, many experts see the physical impact of smoking crack as no more severe than that of snorting powder.

All this explains why the expert Sentencing Commission, after a comprehensive study, recommended in 1995 that Congress eliminate the disparity between crack and powder cocaine that it had created in 1988 and greatly reduce the crack penalties. But that report was shot down by then-Attorney General Janet Reno even before Congress trashed it. Under orders from the Clinton White House, Reno took the politically cowardly approach to drug sentencing throughout her tenure by opposing almost all proposals to make it more civilized. But even Reno finally admitted that the crack penalties were excessive. Ashcroft won’t even do that.

Sens. Sessions and Hatch would not eliminate the crack-powder disparity. But they would quadruple the amount of crack that triggers a five-year mandatory minimum sentence from five to 20 grams, and the amount that triggers a 10-year mandatory sentence from 50 to 200 grams. (They would also-in what most experts see as a move in the wrong direction-increase some powder cocaine penalties.)

It is telling that a drug warrior as determined as Sessions now says that the current crack penalties often fall upon nonviolent, minor accomplices "who play only a minimal role in a drug-trafficking offense, such as a girlfriend or child of a drug dealer who receives little compensation." And that these penalties have largely failed to protect minority neighborhoods or stop crack from spreading across the country. And that recidivism rates for drug offenders are much lower than for violent criminals. And that: "Since crack is found to a high degree in the African-American community, [the severity of crack sentencing] has created an impression of bias. That can be debated, but if you can’t justify the sentences on crack on the merits, and if in fact they are out of step with other sentences, then they ought to be fixed-and promptly."

Congress should listen to Sessions, to the judges, to the experts, and to the Sentencing Commission. And it should give the politicians at the Justice Department the respect they deserve.

The post Legal Affairs – It’s Time to Stop Packing Prisons With Two-Bit Crack Users appeared first on Stuart Taylor, Jr..

This grievous injustice-which prevents little, if any, crime-will continue unless President Bush leads a bipartisan push for sentencing reforms that combine toughness with fairness. There could be no better way for the President to show that compassionate conservatism is more than a slogan and that he has the courage of his convictions about redemption and rehabilitation.

The thousands who could be salvaged are people no more dangerous than Derrick Curry of suburban Prince George’s County, Md. He was a community college student with $150 in his bank account and dreams of playing pro basketball when he got into trouble for the first time in 1990, at the age of 20. Under the influence of a neighborhood friend turned narcotics dealer, Curry did a brief stint as a delivery boy for a drug ring. It ended when he delivered a pound of crack cocaine from the friend to federal undercover agents.

A few months of jail and an intensive counseling regime could have shocked this kid straight. Instead, he got the minimum sentence required by federal law: 20 years, without parole. Most murderers get less than 10 years, most rapists less than five. "Punish him, yes!" Curry’s devastated father, Art, then a high-school principal, told The Washington Post in 1994. "Put him in a boot camp, work his butt off, give him some training. But don’t take his life away!"

Curry got part of his life back on Jan. 20, when Clinton set him free. A few weeks before, Clinton had told Rolling Stone that "there are tons of people in prison who are nonviolent offenders," that "the sentences in many cases are too long," and that "the disparities are unconscionable between crack and powdered cocaine."

That was quite a switch for Clinton, who for eight years found it politically expedient to have his White House and Justice Department squelch a succession of proposals to bring some sanity to the system. One of the laws the Clinton Administration had defended mandates that crack defendants (most of whom are black) must serve five years if caught with 5 grams and 10 years if caught with 50 grams. That’s far more prison time than is required for powder-cocaine defendants (many of whom are white) who are caught with identical quantities.

It was not until after November’s election that Clinton expressed any unhappiness about his own Administration’s use of such laws to send people such as Curry to rot in federal prison. Clinton’s hypocrisy and cowardice on this issue have been of a piece with his 1992 detour from the New Hampshire primary to preside over the execution of severely brain-damaged Arkansas death row inmate Rickey Ray Rector. After 20 years of watching Republicans win by calling Democrats soft on crime and drugs, Clinton had decided to ruin as many lives as necessary to sound as tough as any Republican.

This may have been smart politics, but it was disastrous policy. A 1993 Justice Department study suggested that some 21 percent of all federal prisoners, and one-third of federal drug prisoners, are nonviolent, low-level offenders who pose little or no danger to society. That would come to more than 30,000 of the 147,000 people in federal prisons today. As Clinton slithers into infamy, the time seems ripe for Bush to forge a bipartisan coalition to reform our drug sentencing laws. The objective would be neither to free dangerous criminals nor to let minor drug offenders escape punishment. It would be to give nonviolent offenders such as Derrick Curry a chance to become productive citizens and kids caught in future drug deals a chance to work their way out of the gulag. It would also save billions of the dollars that we now spend to incarcerate 2 million prisoners. As our imprisonment rate has soared to several times that of any other civilized nation, so has the cost.

The time is ripe because public opinion is turning against the lock-’em-up approach to the drug war, which has dragged on for decades with little impact on the drug supply and no end in sight. One sign of this change of heart was California voters’ adoption in November of Proposition 36, which calls for sending minor drug offenders to treatment instead of prison. Another sign is the proposal by New York Gov. George E. Pataki-a Republican with a hard-line history but a keen sense of which way the wind is blowing-that the state relax its harsh Rockefeller drug laws. And the currently popular movie Traffic has made waves by combining a vivid portrayal of the horrors of drug abuse with a powerful indictment of the drug war, which it portrays as a war against American families.

At the same time, some leading conservatives and drug-warriors have joined the near consensus among moderate and liberal experts that long prison terms for minor drug offenders waste billions of dollars and thousands of lives with little or no impact on crime. Even Gen. Barry McCaffrey, Clinton’s gung-ho drug czar, has said he is "unalterably opposed" to mandatory-minimum drug sentences. And self-described "crime-control conservative" John J. DiIulio, previously an influential advocate of long prison terms, had a change of heart five years ago. He concluded that we should devote more resources to drug-treatment and crime-prevention programs and to the kind of prisoner-rehabilitation effort that had been out of fashion for decades. "There is a conservative, crime-control case to be made for repealing mandatory-minimum drug laws now," DiIulio wrote in 1999, stressing that while we should still "incarcerate the really bad guys," we should give judges discretion to send nondangerous defendants to mandatory treatment and rehabilitation programs. DiIulio now sits in the White House as director of Bush’s much-touted Office of Faith-Based and Community Initiatives. He has no official role in law enforcement, but he does have access to the President’s ear.

No President will ever be in a better position than Bush, a conservative Republican who once had a drinking problem, to lead a bipartisan movement to help people with drug problems by reforming the sentencing laws, in Nixon-goes-to-China fashion. Attorney General John Ashcroft, long a champion of harsh mandatory-minimum sentencing laws, could be an obstacle. But Ashcroft’s public statements since taking office have been consistent with a little-noticed Bush-Cheney position paper last year stressing drug education and treatment and omitting the usual Republican demands for ever-harsher criminal penalties. Perhaps Ashcroft, who has forthrightly denounced racial profiling, will come to see that the drug war’s sentencing regime has had an even more troublesome discriminatory impact. Almost 80 percent of the people entering the nation’s prisons are black or Hispanic, despite studies showing illegal drug use to be equally prevalent among whites.

One conservative who still advocates long prison sentences for even relatively minor drug offenders is William J. Bennett, who was the first President Bush’s drug czar from 1989-90. "Crime is down-way down-and one of the reasons is locking up a lot of people," says Bennett, stressing that many nonviolent crimes deserve punishment and many people convicted only of nonviolent drug offenses are in fact violent criminals. Bennett also expresses concern (as has DiIulio) that the liberal brand of drug treatment often fails because probation and parole programs lack the resources and the will to coerce long-term participation by the many drug offenders who will otherwise drift back to old haunts and old habits.

There is some truth to this. But it does not negate the 1993 Justice Department numbers suggesting that tens of thousands of the small-time drug offenders in federal prison have never been personally implicated in acts of violence. Bennett’s concerns can be met by letting drug offenders avoid prolonged imprisonment only if they are truly nonviolent small-timers and if they go into drug-testing and treatment programs that are adequately funded and made genuinely mandatory by the threat of imprisonment for those who slip.

To be both politically viable and effective, any sentencing reform proposal should replace prolonged imprisonment with just such an intensive regime of tough love, often including months of shock incarceration and years of mandatory drug treatment and education. As even Bennett concedes, with the right incentives and opportunities, many small-time drug offenders can stay clean and straight. Let’s stop taking their lives away.

The post Legal Affairs – Good Pardons, Bad Laws, and Bush’s Unique Opportunity appeared first on Stuart Taylor, Jr..

The number of people incarcerated in the nation’s prisons and jails has reached an all-time high of around 2 million inmates, at a cost to taxpayers of some $40 billion a year. This is six times the number of prisoners we had in 1970, when crime rates were much lower than they are now. Meanwhile, the U.S. rate of incarceration has just become the highest on the planet, passing Russia’s, according to an Oct. 9 report by the Sentencing Project, a group that advocates alternatives to prison. The current U.S. rate of 690 prisoners per 100,000 people is more than five times that in the United Kingdom; six times that in Canada, Australia, and Spain; seven times that in France and Italy; and 17 times that in Japan.

These are astonishing numbers, although they have drawn far less media attention than the 70 convicted murderers who have been executed so far this year. This incarceration rate has an especially devastating impact on black men, whom we are locking up at eight times the rate for white men (per capita), and their families.

But you won’t catch Gore or Bush-who seemed almost giddy during the Oct. 11 debate about the prospect of putting some murderers to death-saying that 2 million prisoners are too many, or vowing to reform this huge, costly, inefficient, wasteful government program. Both candidates remember the soft-on-crime mauling that Bush’s father gave Michael Dukakis in 1988. And both remember how the Clinton-Gore ticket avoided a similar fate in 1992 and 1996 by making "tough penalties" a mantra. Since then, the Administration has advocated drug sentences even harsher than those championed by Presidents Reagan and Bush and Attorney General Edwin Meese III.

A political consensus has thus congealed behind the highest incarceration rate in U.S. history. To some extent this reflects the commonsense proposition that locking up dangerous criminals cuts crime. And it’s true that the steady drop in crime rates since 1992 has coincided with the soaring incarceration rates. But the consensus among serious crime policy experts is that we have overdone it, to the point of putting away far too many people, for far too long, who aren’t dangerous. This is the view not only of liberals, but also of hard-line advocates of crime-cutting through imprisonment such as John J. DiIulio Jr. of the University of Pennsylvania; James Q. Wilson, professor emeritus at UCLA; and many Reagan-appointed judges.

Don’t take my word for it. Read what DiIulio-a self-described "crime control conservative" who wants to "incarcerate the really bad guys"-wrote last year: "The nation has `maxed out’ on the public safety value of incarceration," the "pendulum has now swung too far away from traditional judicial discretion" in sentencing, and "there is a conservative crime control case to be made for repealing mandatory-minimum drug laws now." He called for repealing both the myriad federal mandatory sentences adopted since 1986 and state laws.

Similarly, the venerable Wilson wrote two months ago (in Slate) that when Congress chases headlines by adopting "absurd penalties"-such as five years without parole for having 5 grams (one-fifth of an ounce) of crack cocaine and 10 years for 2 ounces-the results include "fill[ing] up prisons with people serving five-year sentences for possessing a rock, when people who have burgled someone’s home are serving two-year sentences." Richard A. Posner, the Reagan-appointed chief judge of the Chicago-based U.S. Court of Appeals for the 7th Circuit, has called the federal drug penalties "savagely severe."

These critics are not crime-coddling wimps. These are the tough guys. They understand that many drug defendants have in fact committed violent crimes as well. But these critics know enough to recognize when tough-on-crime measures have veered into irrationality. In New York, for example, DiIulio’s research confirms that more than 25 percent of the incoming male prisoners and about half of the incoming female prisoners are drug offenders "whose only past felony crimes, [both] recorded and undetected, were genuinely low-level, nonviolent drug crimes."

The simplistic notion that building more prisons is the best way to reduce crime is also confounded by other data: Crime rose from 1985-well after imprisonment rates had started their long climb-to 1992. And since 1992, the states where crime has dropped the most have not been the ones locking up the most people, according to a recent study by the Sentencing Project. In Bush’s Texas, for example, the crime rate dropped 35 percent from 1991-98, while the imprisonment rate soared by 144 percent. But far smaller increases in imprisonment rates in states such as California (52 percent) and New York (24 percent) were accompanied by even larger reductions in crime (36 percent and 43 percent, respectively). Overall, the 30 states with the smallest hikes in incarceration rates (averaging 30 percent) had larger average crime reductions (17 percent) than the 20 other states where incarceration rates went up an average of 72 percent and crime fell by only an average of 13 percent.

Any incremental crime-reduction benefits are small indeed when the prison binge becomes so indiscriminate as to doom some minor offenders to downright barbaric prison terms, such as the 25-years-to-life sentences of the two California men whose third "strikes" were stealing (respectively) a slice of pepperoni pizza and four chocolate chip cookies. Most striking is the fact that illegal drug sales have held steady even while the imprisonment of drug offenders has soared to a staggering 75 percent of all those entering federal prison, and 35 percent of those entering state prisons and jails.

Roughly half of our 2 million prisoners are serving time for small-time drug deals and other nonviolent crimes such as stealing cars. Most of these people present no threat to society. Indeed, they are more likely to become dangerous if packed into prisons to be raped and schooled by predators than if left on the outside. These nonviolent offenders could be punished quite adequately with probation or brief stints of shock incarceration followed by parole-especially if policy-makers follow the advice of liberal and conservative experts alike and put teeth into such sentences through closer supervision, and what DiIulio calls "coerced abstinence" from drug abuse monitored by mandatory drug tests.

Keeping minor offenders out of prison would also free up billions of dollars for other crime-prevention efforts, such as putting more police on the streets and establishing more drug treatment programs. These are far better bets than building more prisons to produce further reductions in violent crime rates, which are still three times higher than the rates in 1960.

Some had hoped that the Clinton-Gore Administration would move away from this unjust and wasteful overreliance on imprisonment. After all, Clinton’s brother Roger could have spent at least five years in prison (rather than the 15 months he got in 1984) had his cocaine-selling violation been punished under the current federal statute. Instead, Clinton has seized every opportunity to demagogue the issue and to squelch reform efforts.

The President has thereby aggravated a glaring social problem that he sometimes finds convenient to decry. Five years ago, Clinton marked the day of the Million Man March by saying that "something is terribly wrong" when almost one-third of black men in their 20s are either behind bars, on parole, or on probation. Two weeks later, he helped perpetuate this state of affairs by signing a bill blocking the U.S. Sentencing Commission’s proposal to reduce the egregious penalties for crack cocaine defendants, almost all of whom are black.

The winners of this year’s federal and state elections will, unfortunately, have no popular mandate to stop the prison binge. Might Gore or Bush do the right thing anyway? It’s hard to be optimistic. But if the next President does feel an urge to strike a blow for simple fairness and common sense, he could cite the assertion made 30 years ago by Bush’s father, then a Texas Congressman, that abolishing mandatory prison terms "will result in better justice." Or he could disinter one of Clinton’s more auspicious lines from 1992: "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."

The post Legal Affairs – The Issue Politicians Are Ignoring: 2 Million Prisoners appeared first on Stuart Taylor, Jr..

Its importance to people caught up in the system, and to the judges who administer it, dwarfs that of the federal death penalty, the exclusionary rule, Miranda, date rape, gun control, and the other issues that generate headlines and heat.

The problem is federal criminal sentencing: its roots are the destruction of judicial discretion by the Sentencing Reform Act of 1984 and the mandatory minimum sentences passed by Congress since then in response to public pressure to get tough on drug abuse and crime.

The system of "guideline" sentencing ushered in by the 1984 act is "a dismal failure," as Judge Jose Cabranes of the U.S. District Court in New Haven, Conn., asserted in a speech at the University of Chicago Law School last week.

He cited "a near consensus among those who know most about the complex and difficult business of sentencing-trial judges, probation officers, defense attorneys, and many front-line prosecutors-that there is something profoundly wrong with this guidelines system and that substantial reform or abolition is the answer."

The 1984 act grew out of complaints that trial judges had such unbridled discretion that similar defendants got widely disparate sentences based on the predilections of the judge.

Congress created the seven-member U.S. Sentencing Commission to set binding guidelines based on a calibrated scale of defendants "offense levels" and criminal histories, and abolished parole.

With narrowly defined exceptions, judges were obliged to sentence every defendant within a range set by the guidelines, by choosing one of the 258 boxes in the Sentencing Commission’s grid.

It seemed like a good idea at the time, to many Democrats and Republicans alike. But four years of experience under the commission’s fat code book, compounded (and often overridden) by Congress draconian mandatory minimums, have been disastrous:

• The average prison term served by convicted defendants has more than doubled since 1984, from 13 months to 30 months, with the average for drug offenders rising from 27 months to 67 months.

• The federal prison population has soared, from 24,000 in 1980 to about 65,000. The billions being spent for new cells can’t keep pace with overcrowding.

• Hundreds of first-time couriers and other bit players in drug deals, once considered candidates for possible probation, are now being locked up for five, 10, even 20 years.

• Well over half of all federal prisoners are black or Hispanic, and these racial minorities are serving longer sentences on average than whites who committed similar crimes.

• The courts have been deluged by criminal trials and appeals, in large part because harsh penalties have increased defendants’ incentives to go to trial rather than plead guilty.

• The new sentencing process is so complex and hypertechnical that it takes judges roughly 25 percent more time than before.

• Many judges have little or no time left to try or supervise civil cases and are demoralized at being reduced to rubber-stamping manifestly unjust sentences.

What are the benefits for which we have paid such high costs?

One might have hoped that violent crime would be down. No such luck: The Federal Bureau of Investigation reported an 11-percent increase in 1990. (The 1991 data are not yet available.)

One might have hoped that the cocaine supply would be dwindling. No such luck: It was more plentiful and cheaper last year than in 1990.

One might have hoped that hard-core drug abuse would be declining. No such luck: The number of Americans using cocaine at least weekly rose 29 percent in 1991.

One might have hoped that by now the big drug kingpins would be rotting in prison. No such luck: Kingpins rarely get caught. And most of those receiving 10-year sentences are easily replaced midlevel dealers and small-fry couriers.

Perversely, many dealers, who know enough to strike deals with prosecutors, get shorter sentences than do bit players with no information to trade.

One might have hoped, at least, for real progress toward the 1984 act’s central goal of squeezing discretion out of the process and cutting down on sentencing disparities.

No such luck: The guidelines, and even more obviously the mandatory minimums, have simply shifted judges’ discretion to prosecutors. The latter can now fix a defendant’s sentence with some precision, and no public scrutiny, by choosing which charges (if any) to bring and whether to cite aggravating details in the sentencing proceeding.

This hardly represents progress: While judges are supposed to use their discretion to achieve just, balanced results, prosecutors understandably have different priorities, such as pleasing their bosses and pressuring defendants to become informants. Many are young lawyers with little experience.

Although there is little evidence that the guidelines have dramatically reduced sentencing disparities, the mandatory minimum laws clearly have increased racial disparities.

One reason is that Congress has set the same minimums for selling small quantities of crack cocaine (the drug of choice in black inner cities) as for selling 100 times as much powdered cocaine (preferred by white suburbanites). For example. 50 grams (two ounces) of crack brings the same 10-year minimum as 5 kilograms (11 pounds) of powdered cocaine.

(A similar Minnesota law was struck down by the state supreme court last month as racially discriminatory.)

The new system is, in short, a disaster. Why. then, has it drawn so little attention?

Judge Cabranes suggested some answers: Sentencing issues hold little interest for the press because they are so technical, with "no public personalities to demonize" and "no occasions for sound bites." Judges tend to shun public disputes, especially when their complaints can be trivialized as whining about loss of power. Many judges have "despaired of any possibility of legislative relief in the near future."

One might also ask how reforms adopted with such bipartisan enthusiasm could go so far wrong.

One reason is that, while the crucial safety valve of judicial discretion has been plugged, the system has been skewed toward undue severity by politicians pandering to public demands for punishment.

By piling on excessive mandatory minimum sentences for a growing list of crimes (as distinguished from the broad outer limits traditionally set by criminal statutes). Congress and the president have prompted the Sentencing Commission to adopt similarly draconian guidelines for other crimes, in pursuit of proportionality.

A second reason is that efforts to deflect criticism of the new system’s most obvious problems have only created worse ones.

For example, consider the Justice Department’s response to the concern that sentencing discretion was merely being shifted from judges to prosecutors. It instructed its prosecutors to charge all defendants (except those with information to sell) with "the most serious readily provable offense or offenses." If heeded, this directive marginally reduces the disparity problem by substantially aggravating the severity problem.

More fundamentally, the whole effort to replace judicial discretion with depersonalized, pseudoscientific formulas was misconceived. The way to achieve just results in infinitely variegated individual cases is to entrust the job to judges who have wisdom and humanity, not to bureaucrats in Washington who don’t know the facts and never even see the defendants.

This is not to advocate a complete return to the pre-1984 regime of unchecked discretion for trial judges. The sentencing-disparities problem was real: There were hanging judges who locked up minor offenders and softhearted judges who coddled dangerous criminals. (Few, if any, in the latter category have been appointed since 1980.)

But this problem could be dealt with simply by preserving the 1984 act’s best innovation- appellate review of sentences-while using advisory standards developed by an expert commission or by the courts for guidance.

The main point, as Professor Albert Alschuler of the University of Chicago Law School said in a recent law review article, is that "some things are worse than sentencing disparity, and we have found them."

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"Despite the small size of the cells, 20 percent to 25 percent of the inmates fear to leave them for recreation or exercise because they fear physical assault. Much of the insecurity is due to under staffing. …Weapons such as knives, ice picks, razors and homemade guns are easily available…. According to the district court, ‘the auditorium and gymnasium are virtual dens for violence. Assaults, stabbings, rapes and gang fights occur…. The corrections officers do not make rounds; they wisely choose to stand by the door next to the riot button.’

"[C]onditions… are unsanitary and dangerous…. Ventilation is grossly inadequate….[T]here are … excessive odors, heat and humidity…. Bed bugs and mice are endemic. Torn mattresses shelter mites, fleas and lice…. Most of the toilets in the cells are old and cracked. Urine sediment has accumulated in the cracks causing noxious odors…. ‘The showers are encrusted with dirt, …slime has accumulated in the chronically wet areas,’ and the smell of putrid water is inescapable.

"…They are not supervised by a guard and thus weaker inmates fear to enter them; instead they take ‘bird baths from the sinks in their cells.’…

"Medical and psychiatric treatment are also shockingly deficient."

Thus did the U.S. Court of Appeals for the 3rd Circuit summarize evidence underlying its ruling last year, in Tillery v. Owens, that conditions at the Pennsylvania State Correctional Institution at Pittsburgh amounted to unconstitutionally cruel and unusual punishment.

Henceforth, however, inmates subjected to conditions like these, which have been documented not just in Pittsburgh but in dozens of prisons all over the country, may find it difficult or impossible to get judicial relief.

That’s the ominous-though for now ambiguous-implication of a 5-4 Supreme Court decision last week in an unrelated case from Ohio, called Wilson v. Seiter.

The new Reagan-Bush majority held that prisoners must do more than prove they are subjected to horrible conditions of confinement; they must also prove that prison officials acted with "a culpable state of mind," amounting at least to "deliberate indifference" to prisoners’ basic needs.

This comes at a time when the drug war and the public’s thirst for punishment are putting so much pressure on overburdened prisons and jails that there often is little that even an enlightened administrator can do to house prisoners humanely.

Minor first-time offenders and hardened criminals alike are being locked up so last that the population of the nation’s dangerously overcrowded prisons and jails has nearly doubled since 1980, to over one million, giving the United States the world’s highest rate of incarceration and far outpacing efforts to add new cells.

In this context, Justice Antonin Scalia’s opinion for the Court seems to suggest that so long as prison officials are doing the best they can with sadly inadequate resources, there is no constitutional problem with states jamming people into crumbling, understaffed, unhealthy- institutions where they shiver in winter, swelter in summer, and are constantly threatened with rape, savagery, and contagion.

Is a warden "deliberately indifferent" to prisoners’ needs if he tries but fails to get money from the state to hire enough guards to control pervasive violence, or to fix broken toilets, or to provide adequate heat and ventilation?

If courts carry the Scalia opinion to the limits of its logic, it could eventually mean unwinding federal court supervision of prisons in more than 40 states even if conditions do not improve.

To be sure, it’s far from clear that all those in the majority would go anywhere near that far. At least until the Court clarifies its meaning in some future case, there will be room for creative judges and prison litigators to interpret their way around Scalia’s troublesome language.

The unusual brevity of Scalia’s 11-page opinion and his failure to specify how one might prove "deliberate indifference" indicate that he may have had to do a good deal of pruning to pick up five votes. It seems probable that some justices in the majority might interpret the ruling more flexibly than its author’s tone would suggest.

And after all, it could have been worse, as Elizabeth Alexander of the ACLU’s National Prison Project, representing plaintiff Pearly Wilson, stressed; she takes a prudent litigator’s optimistic view of a decision with which she must henceforth live.

The U.S. Court of Appeals for the 6th Circuit had ruled in dismissing Wilson’s suit-which was based on evidence of overcrowding and other inhumane conditions less shocking than in cases like Tillery v. Owens-that prisoners must prove "persistent malicious cruelty" by officials to win challenges to prison conditions.

That standard was too tough even for Scalia, who ordered the lower court to reconsider the case using the "deliberate indifference" standard.

The Scalia opinion leaves open two major questions of interpretation:

Can prisoners prove deliberate indifference merely by showing that prison officials are aware of persistently intolerable conditions, even if officials cannot obtain the resources to rectify them?

And can prisoners base their claims on the collective culpability of all state officials, including the legislators who vote to lock more people up while refusing to appropriate the money needed to avoid subjecting prisoners to barbaric conditions?

Scalia’s language, which stresses the need to prove a culpable state of mind "on the part of prison officials," provides no support for such liberal readings of "deliberate indifference." Nor does Scalia’s response to Justice Byron White’s dissent.

White, joined by Justices Thurgood Marshall, Harry Blackmun, and John Paul Stevens, argued that requiring prisoners to show official culpability in such cases was an unwise departure from precedent. It "leaves open the possibility," he said, that prison officials will be able to defeat complaints "simply by showing that the conditions are caused by insufficient funding from the state legislature." White also echoed the Justice Department’s assertion in an amicus brief that "seriously inhumane, pervasive conditions should not be insulated from constitutional challenge because the officials managing the institution have exhibited a conscientious concern for ameliorating its problems."

In brushing aside such concerns, Scalia suggested that if his opinion does have the effect of allowing states with inhumane prison conditions to use a "cost" defense to block judicial intervention-a possibility he did not disclaim-that’s just the way the cookie crumbles:

"An intent requirement is either implicit in the word ‘punishment’ or is not; it cannot be alternately required or ignored as policy considerations might dictate."

One irony in all this is that some of the best prison administrators, frustrated by their states’ refusal to pay for humane conditions, privately welcome suits against their institutions.

Faced with voters and legislators who ratchet up penalties while turning a blind eye to the horrors visited on prisoners, these officials know that judicial intervention is often the only source of pressure to provide minimally adequate food, sanitation, medical care, security against assault, and other basic human needs.

Now, by suggesting that courts can intervene only when prison officials are indifferent to their responsibilities or worse, the Court may be undercutting precisely those officials who most want to do the right thing.

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