Mandatory sentencing and drug control

Three years after the Pennsylvania Supreme Court ruled the state’s  mandatory sentencing laws unconstitutional, the state’s DAs and some of the other usual law-‘n’-order suspects  managed to get a bill restoring them (even the “school-zone” mandatory, which I thought went out with disco) through the state’s House of Representatives. Today the Judiciary Committee of the State Senate held a hearing on the question.

My prepared remarks are below, after the jump. My oral presentation was somewhat less restrained; after two hours of listening to people assert that objecting to cruel and ineffective punishment proposals must reflect an indifference to the suffering of crime victims, I pretty much lost it: Without raising my voice, I pointed out that the vaunted capacity of prosecutors wielding the threat of long mandatory terms to convert lower-level offenders into “cooperating” witnesses against higher-ups faced the same logical and moral objections as using the threat of torture for the same purpose: the incentive to testify is just as strong for false testimony as for true testimony. If it’s obviously immoral to threaten to break someone’s arms if he won’t testify, and if spending five extra years behind bars is worse than having your arms broken, then why is it considered OK to exact testimony under the threat of an additional five-year prison term?

The broader point is, I think, straightforward. You can decompose the question of mandatories into two sub-questions:

  • Would it be a good idea to have more prisoners than we have now?
  • For any given number of prisoners, will a system of mandatory sentencing – especially for drug offenses – do a better job of crime control than letting the judges decide?

In each case, it seems to me, the answer is obviously “no.” The case on the other side consisted entirely of insisting that crime was a very, very bad thing and ignoring the notion that sentencing has opportunity costs.

I had lots of good company, including Al Blumstein of Carnegie Mellon, John Wetzel and Bret Bucklen of the Pennsylvania Department of Corrections, former Philadelphia police commissioner Charles Ramsey (now chairing the Pennsylvania Crime Commission), and Kevin Ring of FAMM.  I thought the good guys clearly won the debate on points; who has the votes is, of course, a different question.

Video here. My piece starts at Minute 114. (Look for the thumbs-up from Al Blumstein when I’m done. Made my week.)

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Holder’s Sentencing Reforms Could Increase Racial Disparities in Incarceration

Instructing federal prosecutors to use long sentences for drug dealing within organizations may increase the over-representation of people of color in prison

Attorney General Holder’s new policy on the application of mandatory minimum sentences in drug cases reserves tough sentences for offenders who work within larger organizations rather than being independent operators. Under this policy, a banker who will launder drug money for any outside drug organization may get more leniency than would a courier or lookout who is a member of single criminal organization. In a balanced appraisal of Holder’s proposal, Jonathan Caulkins points out a potential adverse impact of prioritizing offenders on this criterion:

Organizations of all ethnicities import drugs, but given the geography of production and transshipment, smuggling operations are disproportionately Hispanic. Likewise, members of all racial and ethnic groups participate in retail selling, but — with the exception of outlaw motorcycle groups — the gang members are disproportionately minorities.

The result of assuming that those criminals who work within a larger organization deserve more severe punishment may therefore be that the federal prison population over-represents Hispanics and African-Americans to an even greater extent than it does today.

An alternative approach to sentencing is to worry less about whether drug offenders are part of an organization and instead focus the toughest punishment on those individuals whose removal would most severely disrupt the overall illegal drug trade. This would be a significant departure from the longstanding law enforcement practice of sweeping up huge numbers of low-level drug offenders, most of whom are people of color who work within a gang or other large criminal organization. To quote from an op-ed Jon and I co-authored a few years back:

The US has increased incarceration for drug-law violations literally tenfold since 1980 without achieving more than temporary increases in prices. There would be little lost by halving the average sentence length for easy-to-replace functionaries within the drug distribution system (lookouts, typical retail sellers, hired hands, etc). It would also spare the public the enormous human and social costs of mass incarceration.

The Many Foes of Discretion in Criminal Cases

The left and the right often are against discretion in criminal justice

The Obama Administration, in the person of Attorney General Holder, has proposed reforms that are intended to make mandatory minimum sentences less common for low-level drug offenders in selected federal drug cases, and, allow federal prisoners to have compassionate early release in certain circumstances (e.g., terminal illness, death of the other parent of the prisoner’s young children). Having advocated for these sorts of changes from the inside and outside, I am very pleased by these policy proposals, but also expect that they will meet with some significant resistance, and not just from the political right.

Mandatory minimums and indeed the broader move in the 1980s towards invariant, tough sentences in drug cases is often misremembered as an entirely conservative invention. It was not, for a reason I have outlined before:

Much of the U.S. public now sees the federal government as a malign, dreaded influence in their lives. Some conservative politicians share this perspective and work hard to fan such popular fears. Meanwhile some liberal politicians see any allowance of discretion and autonomy by civil servants as an invitation to disparate treatment based on race, sex, class, disability etc. These two camps make common cause to tie down the federal government with as many rules as possible.

Many liberals supported the transformation of criminal justice penalties that occurred in the 1980s, with Tip O’Neil being the highest-profile example. Part of this had to do with many of them representing urban areas full of residents who were sick of crime. But it also had to do with many liberals’ instinctive distrust of governmental discretion. Such people argue — not without reason — that if you let judges determine sentences, some of them will hand out stiffer punishments to minority criminals than they do to white criminals convicted of the same offense. Expect at least a few leftists who gain a platform in the coming debate about Obama’s sentencing reforms to raise this concern.

My own view is that mandatory minimum sentences don’t reduce discretion so much as move it from judges to prosecutors, and more generally that (warts and all) I would rather have sentences determined by people with personal knowledge of individual criminal cases than by elected officials in a faraway city. For that reason I would like to see the Congress endorse even more governmental discretion by restoring parole within the federal prison system, which it abolished in 1984. If we are willing to have correctional officials make judgments about who deserves compassionate early release because of illnesses and family tragedies, then we should be equally willing to let the same officials make judgements about who might be released because they are rehabilitated and unlikely to re-offend.