It is not often these days that I am amble to write about something that excites me – that is, something that excites me in a positive way. Fortunately, I have been moved to do so of late, and have picked up the metaphorical blogging pen, after an extended summer hiatus, for want of one particular issue.
Is it the conflict in Syria, an example of grotesque human cruelty? No. I am immensely skeptical of the effort on our (America’s) part to intervene, and I am equally skeptical of any argument invoking a moral imperative. But I am even more skeptical of my own ability to understand the situation fully. Though certainly important and of-the-moment, foreign policy and particularly the Middle East has never been my area of knowledge or interest. I am more interested in the war at home, in which a significant blow was struck for the good guys recently, a blow I sincerely hope is the beginning of a very long-overdue reformation that will correct a glaring error and gross injustice in our legal system, and in so doing be remembered as a turning of the punitive tide in the war on drugs.
I am speaking, of course, about mandatory minimums.
The Justice Department will no longer pursue mandatory minimum sentences for certain low-level, nonviolent drug offenders, Attorney General Eric Holder said Monday, noting the nation is “coldly efficient in jailing criminals,” but that it “cannot prosecute or incarcerate” its way to becoming safer.
“Too many Americans go to too many prisons for far too long, and for no truly good law enforcement reason,” Holder told the American Bar Association’s House of Delegates in San Francisco.
Everyone who pays attention to the news has heard already that Attorney General Eric Holder has instituted new Justice Department policy that takes a much more nuanced step on crime and punishment than mandatory minimums are designed to allow.
One of the most Draconian tools implemented in the colossal waste of time, energy, money, and humanity known collectively as the War on Drugs has been the mandatory minimum sentencing laws passed by Congress in the late 80’s. Short of repealing the laws, the act of correcting them and, frankly, stripping them of many provisions, would be a quantum leap toward putting the “justice” back in Justice System. (If, perhaps, you haven’t seen a crime/law/drug war documentary in the past couple decades and you need a refresher on the horrifying punishments born of the mandatory minimum era, go here.)
This would all be one thing if the MM laws were shown to produce a precipitous drop in the crime rate that is in any way close to a correlating with the social, economic, and human burden born by the rest of us. That would still be very troubling, but perhaps stomach-able (though I wouldn’t bet the farm). But, lo and behold, like its progenitor the Drug War, it has been ineffective at producing results.
From an article in U.S News & World Report:
Congress passed strict mandatory sentences for buying and selling cocaine, marijuana, heroin and other drugs in 1986. Selling even small amounts of these drugs resulted in automatic five-year prison sentences (10 years for higher quantities). Beginning in 1987, when the new mandatory sentencing law took effect, the violent crime rate actually rose over the next four years by a startling 24 percent and did not return to its 1987 level until a decade later.
Before it reached that point, however, Congress acknowledged that the new mandatory minimum prison sentences were sometimes excessive, and in 1994 voted to exempt certain first-time, nonviolent and low-level drug offenders from mandatory minimums. In those cases, courts were authorized to impose individualized sentences based on the defenders’ role in the crime.
So crime went up, right? Not even close. Since the mandatory minimum carve-out, known as the “safety valve,” was implemented, roughly 80,000 drug offenders have received shorter sentences, and the crime rate has dropped by 44 percent. Needless to say, a theory that says mandatory sentences reduce crime cannot explain how the crime rate dropped so far and so fast when tens of thousands of drug offenders were spared the full weight of such sentences.
The experience of the states is even more devastating to mandatory sentencing’s defenders. Over the past decade, 17 states took steps to reduce their prison populations, including by repealing or curtailing their mandatory sentencing laws. In all 17 states, prison populations fell, and so did their crime rates.
There are many articles like this, and I am sure reams of statistics to be pored over and (mis-)interpreted. Correlation does not equal causation (post hoc, ergo, propter hoc), and any statistician will tell you it is difficult, with the size and scope of a societal crime rate, to determine a specific cause (though there are some intriguing theories, but that’s for another day). But they’ll also tell you that after careful study, it is not impossible to tease out some signpost-conclusions from the numbers, and that they do not support the effectiveness of mandatory minimums. Take, for example, Steven Levitt, in the same article:
University of Chicago economist and “Freakonomics” author Steven Levitt was perhaps the most influential supporter of pro-prison policies in the ’90s. He said that sending more people to prison was responsible for as much as 25 percent of the decade’s crime drop. Proponents of mandatory sentences cited Levitt at every turn.
But recently, Levitt concluded that as the crime rate continued to drop and the prison population continued to grow, the increase in public safety diminished. He told The New York Times earlier this year, “In the mid-1990s I concluded that the social benefits approximately equaled the costs of incarceration.” But today, Levitt says, “I think we should be shrinking the prison population by at least one-third.” No one in Congress is proposing anything that radical. But reducing our nation’s prison population and crime rate are achievable goals.
Statistics aside, I also think there is some merit to the argument that when considering a policy of such harsh and irrevocable consequences as those of mandatory minimums, anything short of wild, unprecedented success should be automatically deemed failure. The policy comes at such great cost that if any room is left even for doubt of its effectiveness it can’t be worth it. A cancer cure that kinda helps a couple people out of a thousand is no solution.
Now, to be clear, Eric Holder cannot by himself change the law, of course, though he has some discretion as to what laws he directs his department to pursue cases under. To actually change the law, we will need Congress, a body which may…just may…get a wild itch to suddenly take a break from doing nothing and being obstinate about it and start actually passin’ some laws:
Next month, the Senate Judiciary Committee will hold a hearing on a bipartisan bill introduced by Sens. Rand Paul, R-Ky., and Patrick Leahy, D-Vt., which would give federal courts more discretion to depart from ill-fitting mandatory minimum sentences. The bill, the Justice Safety Valve Act of 2013, would build on the success of the 1994 legislation. Thirty years of evidence suggests this approach will make us safer.
I also have to point out that this is such a big deal for me personally, and such a glaring and persistent injustice in America, that I would be willing to forgive a LOT on the part of both Obama and Congress if they can just get this one thing done. Much of the wasted time and failed initiatives they have both had a part in would be blown away by the reflected light and glory of this accomplishment – because it would be HUGE.
And best of all, moving on from mandatory minimums also happens to be good politics. Though a little behind the states in this effort of reducing burdensome prison populations by reducing what people get sent there for, Holder has received praise from both sides of the aisle for his new initiative, as each side has its own reason to be against mandatory minimums. Time points out:
Holder’s plan won applause both from liberals who claim that harsh sentencing perpetuates a “cradle-to-prison pipeline” among racial minorities, along with conservatives looking for ways to reduce federal spending.
“It is potentially a very significant shift in policy,” Bill Piper, the director of national affairs for the Drug Policy Alliance, a left-leaning group that favors legalized marijuana, tells TIME. “And one that would save taxpayers money and increase public safety.”
“It’s a step in the right direction, though about five years too late,” says Grover Norquist [Norquist! I know crazy right?!], the ardently anti-tax president of the conservative Americans for Tax Reform. “Does it make sense to have a 70-year-old bank robber still in prison? At what point does keeping a guy in prison actually help? You want people in prison because they’re a threat to others, not because you’re mad at them.”
Norquist is a leader of the Right on Crime, a group that has approached criminal-justice reform from a conservative perspective. Another leader of the group, the conservative activist Richard Viguerie, recently wrote that “the entire criminal-justice system is another government-spending program” riddled with “excessive and unwise spending.”
The icing on the cake of this Making Sense of Our Drug Laws initiative – and by that I do not mean to trivialize it, it would actually be a more significant part of the cake – would be if President Obama took advantage of the vacancy soon to be in the drug czar position left by Gil Kerlikowske, and appoint someone with a set of qualifications geared toward a new approach to drug abuse. As suggested by David Sheff, writing for Time:
In early August, the Administration announced that Gil Kerlikowske, the nation’s drug czar, would become head of the U.S. customs office. Kerlikowske, a former cop, has run the Office of National Drug Control Policy (ONDCP), making him the top general in the war on drugs. Kerlikowske’s departure clears the way for the President to name a new ONDCP chief from the medical or public-health community, someone qualified to effectively address drug abuse and addiction for what they are — not criminal problems, but health problems.
Appointing a doctor to the position of the nation’s top drug cop would be not only a huge symbolic statement indicating where this administration stands on drugs, but would also have the potential to actually make a substantive change in how we handle the problem. Such a victory of good sense and conscience could be more complete by correcting some inconsistencies in policy, on which the administration has been somewhat ambiguous (again from Time):
Despite these positive steps and the speechifying, critical policy shifts have yet to be made. There’s been no talk of making the mandatory sentencing prohibition retroactive, which means that hundreds of thousands of citizens, including a disproportionate number of African Americans, will remain in prison for minor drug crimes. There’s been no support for some critical harm-reduction strategies, including safe-injection sites for IV drug users, which have proved effective in other nations. And the Administration continues to battle states where marijuana has been legalized.
In fact, in Obama’s first term, there was an increase in the arrest rate for marijuana possession over the rate under President George W. Bush. Also, the Administration has repeatedly cracked down on marijuana growers, even though they were operating legally in their respective states. The greatest failure can be seen in the 2013 budget. Though there are some improvements, $15 billion of the $25 billion is earmarked for the same interdiction, law-enforcement and eradication programs that have failed to lower the supply of drugs and deaths from addiction for decades.
Still, I can finally feel a sense of optimism for the possible redemption of the justice system in a way that has never been as real as it is now.