While almost no one was looking, Congress has embarked upon the most sweeping overhaul of the U.S. criminal justice system in three decades. What's more, Republicans are working with Democrats, and in general agreement with the White House.
The cause that has united this alternate-universe Congress is sentencing reform, specifically the reduction of mandatory minimum sentences for drug traffickers. Senate legislation that would do so isn’t perfect, but it's a worthwhile bill that has a good chance to become law, and deserves to.
The bill, co-sponsored by liberal stalwart Dick Durbin of Illinois and Tea Party favorite Mike Lee of Utah, would drastically reduce mandatory minimum sentences for drug trafficking, give federal judges more discretion in such cases, and allow some existing prisoners to have their sentences reduced. All three steps are long overdue.
Congress adopted mandatory minimum sentences in 1986, engineered by a Democratic House eager to rebut the charge that the party was soft on crime. Congress set the minimums at five, 10 and 20 years, depending on the quantity of drug being trafficked, with mandatory life sentences for cases involving deaths or multiple felony drug convictions.
Since then, the federal prison population has exploded from less than 50,000 inmates to almost 220,000 -- and more than half of them are there for drug crimes. State prison populations have also grown, with the astonishing result that about one of every 100 American adults is behind bars.
Nearly all federal drug prisoners have been convicted of trafficking (not merely possession), a felony that should carry significant penalties. But the current minimums are grossly out of line with penalties for other nonviolent crimes. The Senate bill would reduce minimum sentences to two, five and 10 years, while leaving in place the harsher mandates for drug crimes resulting in death. It would also empower judges to exercise discretion in more drug cases where the defendant has a limited criminal history -- cases where mitigating circumstances are most important, and thus where mandatory minimums are most likely to pervert justice.
Many prosecutors oppose the bill, thinking that shorter sentences will lead to more crime. But the evidence suggests otherwise. In New York state, which reformed its infamously harsh Rockefeller drug laws in 2009, the prison population has gone down -- and so has felony drug crime. Declining prison populations could also allow government to shift resources to more productive ends. This year the Justice Department is spending $6.9 billion, more than one-quarter of its total budget, running prisons.
The cost of the 1986 law has been astronomical, and it has not been spread evenly. Most egregiously, the law treated crack cocaine far more punitively than powder cocaine. That produced a generation of racial injustice in the courts that took a tragic toll on hundreds of thousands of blacks and Latinos.
Congress finally began to address this disparity in 2010, passing a law that better aligned penalties for crack and powder cocaine convictions, but applied it only to future convictions. The new bill would address that injustice by amending the 2010 law to make it retroactive, allowing those convicted before 2010 to apply for reduced sentences.
Strangely, however, the new bill is not itself retroactive; its changes would apply only to future convictions. Another oddity is that, even as it eliminates mandatory minimum sentences for drug offenders, the bill adds them for three new crimes: sex abuse, providing arms to terrorists, and domestic violence resulting in death.
Ideally, both these flaws could be addressed through amendments (one has already been offered to make the law retroactive). Even if not, they are a price worth paying for making the system more fair and sensible.
The Senate bill deserves swift passage and immediate consideration in the House. It would bring a level of sanity to federal drug sentencing that would reduce the prison population, save money, serve the cause of justice and, not incidentally, demonstrate that bipartisanship is still possible in Congress.
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