The Case Against the Smarter Sentencing Act

William G. Otis

Adjunct Professor of Law

Georgetown University Law Center

March 31, 2014

It's hard to recognize Ronald Reagan's America in the landscape we see today.  President Reagan believed in strength, resolve and accountability for bad actors, both foreign and domestic.  What we see now is doubt, decline and retreat  --  retreat as the not-so-former Soviet Union invades the Ukraine and, at home, as the Administration, and some in our party, seem to want to find a way to be more accommodating to drug dealers.

The Smarter Sentencing Act is heralded as overdue "reform" in federal law.  It would be more revealing to say what it actually does.  Despite Chairman Leahy's permitting several constructive amendments  --  amendments that standing alone would be worthwhile  -by far the main thing this bill does is retreat.  It's less a "reform" than a slashing  --  by half  --  of the minimum sentences for trafficking in a large variety of dangerous drugs.   Its most enthusiastic backer is the National Association of Criminal Defense Lawyers.  Its most direct beneficiaries will be heroin salesmen.  It gives more power to naïve and ideologically driven judges for whom no criminal is without an excuse, and it will pave the way for the creeping return of irrational disparity in sentencing. 

In so doing, it would all but dismantle the last monument of Reagan's signature achievement in criminal law  --  the system of determinate sentencing.   When Eric Holder and a politicized Department of Justice tell us that this system is "broken," they're not telling the truth.  As determinate sentencing and existing mandatory minimums have taken hold over the last generation, crime is down by 50%.  Not only is the system of determinate sentencing not broken, it is very likely the most successful domestic initiative of the last half century.  For a tiny fraction of the money we've spent building the dependency state and financing the unrestrained growth of government, we have achieved, through more serious and  uniform sentencing, an improvement in public well-being other kinds of social spending, though massively greater, have not even approached. 

The criticisms of existing mandatory minimums are familiar by now:  That they have helped swell the prison population, are excessively harsh, target non-violent offenses, disproportionately harm minorities, and inappropriately tie the hands of judges.
 
None of this is true.  The attacks have gained traction only because the critics ignore how mandatory sentencing came about, how it actually works, and how widespread its benefits have been. 
 
Two generations ago, in the Sixties and Seventies, federal law had an indeterminate sentencing system  --  that is, a system with no mandatory guidelines or statutory minimum sentences.  We were convinced that rehabilitation works, and that we could trust judges to get it right at sentencing with only tepid, or with no, binding rules from Congress.

For our trouble, we got a national crime wave.  In the two decades after 1960, crime went up by well over 300%.  It was twice what it is now.  Whole neighborhoods in our major cities, including this one, became free-fire zones, largely because of the gunplay inevitably associated with drug dealing. 
 
In the Eighties, Congress got the message, and embraced determinate sentencing. That meant, for a few very serious offenses  --  child pornography, firearms trafficking, and drugs including methamphetamine, PCP, cocaine and heroin  --  that Congress embraced mandatory minimums below which even the most willful judge cannot go.

Although seldom mentioned in the current critiques, the country got something vital in exchange for the reforms that made sentencing conform to law instead of taste. From the early Nineties to the present day, we have enjoyed a massive reduction in crime, to levels not seen since the Baby Boomers were in grade school.
 
This increase in our ability to live in peace and safety has been a moral and an economic boon. According to Bureau of Justice statistics (http://www.disastercenter.com/crime/uscrime.htm) there are more than 4,000,000 fewer serious crimes per year in America today than there were a generation ago,  before mandatory minimums came into the law.  The financial benefits alone of having so much less crime are enormous, but seem invisible to those who want to cut back on the relatively small costs of imprisonment.  But most important are the human benefits.  Crime reduction has given a more secure life to every American, but has especially helped the disadvantaged.   The hundreds if not thousands of people who were being gunned down in the streets of our big cities were mostly members of minority groups.  Just as they were disproportionately victims of crime in those days, they have been disproportionately the beneficiaries of the drop in crime as stiff mandatory drug sentencing has taken hold.
 
It's true that sentencing laws and increased imprisonment have not alone produced these benefits, but they have contributed significantly. The late  Prof. James Q. Wilson agreed with  a University of Chicago study finding that increased imprisonment in the Nineties accounted for a quarter or more of the decrease in crime. 
  
The most prominent arguments for slashing today's successful sentencing system miss the mark because of the mileage they get from three very clever, because largely unspoken, misconceptions.

The first is that this "reform" is about marijuana  --  that is, making sure that a  kid who smokes a  joint or two doesn't wind up with a judge who is forced to send him off to federal prison for years and thus ruin his life. Many of the most vivid horror stories we hear about the excesses of mandatory sentencing are designed to convey the impression that this is what goes on.

It isn't.  The on-the-ground reality is that essentially no one goes to jail at all for simple possession of pot.  For the very few who do  --  after two or three repeat performances  --  you might see a sentence of 30 or 60 days.  In the real world, mandatory minimums are reserved almost exclusively for trafficking, and for trafficking in the hard drugs the bill's backers prefer to keep quiet about because, after all, heroin and PCP just aren't all that popular.

The second clever but powerful misconception is that the health of the criminal justice system is measured, not by the crime rate, but by the incarceration rate.  This is what Eric Holder means when he says the system is "broken."  It's true that the prison population generally, and the federal prison population in particular, has risen dramatically over the last 20 years.  But if you'd ask people on Main Street, what's the problem with the criminal justice system, would they say, "We've caught too many criminals"?  

I don't think so.  They'd say, "We've still got too much crime."  The tacit centerpiece of the argument for this bill  --  that the true measure of the system's health is the incarceration rate  --  is not merely wrong but absurd.  The true measure is the crime rate.  The bill's obsession with people who are incarcerated  --  incarcerated because of their own criminal choices  --  while discounting any consideration of the huge, law-abiding majority  --  is something that could happen only inside the Beltway.  Ordinary people must be wondering, "What are they thinking about?"  

This is related to the third powerful misconception:  That a bigger prison population is, per se, a bad thing.  One might as well say that having more criminals in jail, rather than in your neighborhood, is a bad thing.  When criminals are not incarcerated, they don't just disappear.  Studies over many years have shown that the majority go back to crime.  Those proposing to cut the prison population through watered-down sentencing seldom deal seriously with this fact.  If we cut sentencing now, we'll repeat what happened when we cut it in the Sixties and  Seventies:  We'll get more crime.

Those backing the bill promise, however, that it will be different this time.   One can almost hear in the background Eric Holder's soothing words:  "If you like your crime reduction, you can keep your crime reduction." 

The unspoken premise here is that "non-violent" drug transactions, that is, those conducted without a gun, aren't all that serious.  But the question for punishment purposes is not just whether there was violence; the question is  whether there was  harm.
  
The trafficking and consumption of hard drugs is one of the most harmful and socially destructive enterprises going on in America today.  Even if a particular drug defendant does not engage in violence, his participation in the drug business creates the conditions in which history tells us that violence is certain to occur.  The crack wars were not a myth, and neither is the gunplay that is still a commonplace feature of drug conspiracies from the organizers to the street dealers.
  
Let me give an analogy.   People sometimes ask why mere consumers (as opposed to producers) of child pornography should get long sentences.  The answer is that the consumers create the market in which the producers thrive.   A criminal is properly held accountable for the harms he knowingly facilitates, not just those he directly causes.
  
While many drug crimes are "non-violent" (because they are consensual  sales), they are anything but non-harmful.  Indeed, they can be lethal, and often are.  Recently, the actor Philip Seymour Hoffman died as a result of what was almost certainly a "non-violent" heroin transaction.  But he's just as  dead as if he'd  been shot through the heart.  So are the 13,000 to 14,000 heroin addicts who overdose every year.  Selling heroin to an addict has the same moral valence as selling a loaded gun to a desperate, suicidal man, but results in vastly more fatalities.

It is in part for these reasons that the National Narcotic Officers Association, the National District Attorneys Association, and the National Association of Assistant US Attorneys have come out against the Smarter Sentencing Act.  The opposition of Assistant US Attorneys is particularly noteworthy.  AUSA's are career prosecutors  --non-political appointees hired in administrations of both parties.   They have taken the very unusual, and for them the very risky, step of publicly opposing the Attorney General and his support for this bill.  They have done so because they know that it will drastically handicap their efforts to break down and  prosecute the bigger and more violent drug conspiracies  that states  hand off to the federal government. 
  
Finally, let me address the argument that existing law routinely traps low-level defendants in draconian sentences.  That's not so.  Existing law provides at least four escape hatches for deserving defendants facing a mandatory minimum. 
 
First and most commonly, they can plea bargain their way to a lesser charge; such bargaining is overwhelmingly the way federal cases are resolved, and, as you would think, the most lenient bargains are offered  the least culpable offenders.
  
Even if convicted under a mandatory minimum charge, however, the judge on his own can sidestep the sentence if the defendant has a minor criminal history, has not engaged in violence, was not a big-time player, and makes a clean breast of his crimes. This "safety valve," as it's known, has been in the law for almost 20 years.
 
Separately, a defendant can avoid a mandatory minimum by helping prosecutors bring his cohorts to justice. Prosecutors correctly regard this as an essential tool in encouraging cooperation and, thus, breaking down large conspiracies.
 
Finally, for very unusual cases, there is Presidential clemency.  Only recently, the President exercised this power, granting to inmates convicted of crack cocaine offenses the second largest number of commutations in a single day in 43 years.  With the President's power as the ultimate failsafe based on exceptional circumstances, there is no need, and considerable hazard, in adopting the meat-axe approach the present legislative proposals embrace.

One last thought.  When we parse through the various sections of this bill, let's not lose sight of the central, prepossessing question:  Are we going to lose our nerve? 

Are we going to retreat,  to turn away from a system we know succeeds to start back down the path to one we know fails?  Forgetfulness about our past naivety', and complacency about the crime reduction we've achieved, are the calling cards of decline. We already tried watered-down sentencing and hoping for the best with the scattershot ideologies of several hundred federal district judges.  We learned what happens.  It confounds the rule of law, overestimates judicial discipline, and endangers the public.  If we ignore these lessons, our children will be the ones who pay the price.