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.