Every once in a while, arguably more often than the appearance of Haley’s Comet, people on the left and right come together in bipartisan harmony on a crucial national concern. Like now, for instance. Amazingly, we’re seeing some Kumbaya on the issue of how best to wage a war on drugs.
The old Tough on Crime slogan, which politicians successfully exploited for decades, is out. The notion of being Smart on Crime is in. There seems to be a growing consensus, among everyone from liberal Democrats to libertarian Republicans that this is the way to go. After all, how often do Rand Paul and Eric Holder agree on anything?
In a speech yesterday (a speech that was years overdue), Attorney General Holder took aim at mandatory minimum sentencing—the rigid, draconian policy that has typically condemned nonviolent drug users to long prison terms—and announced that his nationwide network of prosecutors will no longer use those federal laws. He also signaled his support for current congressional efforts—bipartisan efforts—to reform those laws, to make it easier for nonviolent drug users to stay out of the slammer.
“It’s clear,” Holder said, “that too many Americans go to too many prisons for far too long, and for no truly good law enforcement reason. It’s clear, at a basic level, that 20th-century criminal justice solutions are not adequate to overcome our 21st-century challenges.” The mandatory minimum policy, he said, is “ineffective and unsustainable” because of its “significant economic burden” and “human and moral costs.” By cutting the low-level users some slack and focusing instead on “the most dangerous criminals,” Holder said “we can become “smarter” on crime.
The stats tell the tale. Mandatory minimum sentences—for instance, an inflexible multiyear jail stint for a small amount of drugs—have turned us into Incarceration Nation. We have 5 percent of the world population, yet we house 25 percent of its prisoners. Roughly half of all federal prisoners are serving time for drug offenses; in 2010, 49 percent of those drug inmates were serving 10-year mandatory sentences. A disproportionate share of all federal prisoners are minorities jailed for marijuana possession. And the total number of federal prisoners rose 800 percent between 1980 and 2010—at a time when the U.S. population rose only 33 percent.
As for the “significant economic burden,” Holder said yesterday that the federal taxpayer tab for incarcerating mandatory-minimum prisoners was $80 billion—in 2010 alone.
You can probably see why there’s a bipartisan push for reform. In the Senate, libertarian Republican Rand Paul and liberal Democrat Patrick Leahy are co-sponsoring a bill that would give federal judges a lot of leeway to ignore a mandatory minimum sentence when they deem it too draconian; meanwhile, Tea Party Republican Mike Lee and liberal Democrat Dick Durbin are co-sponsoring a separate measure that would simply reduce the mandatory minimums for drug crimes. There are companion bipartisan bills on the House side. As they say down South, everybody has a dog in this hunt.
Liberals, mindful that mandatory minimums have disporportionately punished minorities, view reform as a way to achieve more racial justice (Rand Paul says the same, as part of his pre-2016 minority outreach). Libertarian conservatives, mindful of federal “overreach,” view reform as a way to get government partially off the backs of nonviolent citizens who smoke weed at leisure. And conservative fiscal hawks (as well as liberals who stress budget prudence) view reform as a way to slash the onerous federal incarceration costs.
The ’80s ethos
What we’re seeing here, potentially, is an historic reversal of the tough-on-crime ethos that has persisted since the mid-1980s, when anti-drug sentiment peaked under Ronald Reagan. In 1986, a budding basketball star named Len Bias died of a crack cocaine overdose, and politicians decided to “send a message.” Congress enacted a string of mandatory minimums—based on the amount of drugs, sentences were set at five, 10, and 20 years—and later, it added the “three strikes, you’re out” policy, which put repeat drug offenders in jail for life.
No politician in that era dared question those policies, lest he or she be labeled “soft on crime,” a fatal tag in virtually any election—even though, by the mid-’90s, scores of federal judges were reportedly in a fit of rebellion, refusing to hear low-level drug cases that were brought to them under the mandatory-minimum laws. One of these judges, Jack B. Weinstein in New York, even put it in writing: “I simply cannot sentence another impoverished person whose destruction has no discernible effect on the drug trade.”
But today, finally, the political world has caught up to reality. It’s a rare issue that can put Holder, Leahy and Durbin on the same side as Paul, Lee, conservative activist Grover Norquist and the National Association of Evangelicals. Assuming that Holder follows through (some skeptics wonder) and that Congress shows resolve and follows through (no jokes, please), a Smart on Crime era may be at hand.
As the 18th century British jurist and social reformer Jeremy Bentham warned us, “Every particle of real punishment that is produced, more than what is necessary, is just so much misery run to waste.”
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