Pass the death sentence on mandatory sentencing

‘Americans are a fundamentally decent people’, politicians proclaim, leaving you to wonder why over two million of us are in prison.

As Democratic senator James Webb pointed out in a recent speech on the Senate floor: ‘We have five per cent of the world’s population; we have 25 per cent of the world’s known prison population. We have an incarceration rate in the United States, the world’s greatest democracy, that is five times as high as the average incarceration rate of the rest of the world. There are only two possibilities: either we have the most evil people on Earth living in the United States; or we are doing something dramatically wrong in terms of how we approach the issue of criminal justice.’ (1)

Webb, a former, highly decorated marine who served as secretary of the Navy in the Reagan Administration, has lived up to his tough guy image by decrying what many politicians know but fear to acknowledge – that the criminal justice system ‘is a national disgrace’, which overwhelms our prisons with non-violent drug offenders and which warehouses the mentally ill, at great costs, human and economic, and very little benefit. Webb has introduced a bill to establish a bi-partisan ‘National Criminal Justice Commission’, which may sound like a way of avoiding rather than addressing the crisis, but his forthright critique of the system’s follies and gross injustices make clear that his call for reform is a mission, not a stunt.

You’ll probably never lose money betting against the enactment of effective and humane criminal justice policies or the sudden spread of rationalism (especially during an upsurge in gun sales reflecting the belief that cautious, centrist Barack Obama is establishing either a fascist or socialist dictatorship). Still, economic pressures, a breakdown of the prison system, exposés of wrongful convictions, and the growing threat of transnational gang violence (cited by Webb and fuelled largely by the drug trade) are combining to make reform possible, and in some cases, mandatory. For example:

— In California, a federal court has ordered the state to reduce its prison population by one third (55,000 people) within three years. ‘The evidence is compelling that there is no relief other than a prisoner-release order that will remedy the unconstitutional prison conditions’, the court declared. The prison system was killing a minimum of one inmate a month, the court had previously found, and its healthcare system was placed in federal receivership (2). (California governor Arnold Schwarzenegger is currently facing contempt charges for refusing to fund renovations demanded by the court-appointed receiver.)

— In New Mexico, pro-death penalty governor Bill Richardson recently signed a repeal of the state’s death penalty law, saving the state the risk of executing the innocent or mentally disabled, as well the expense of capital trials. (New Mexico is the third state to abolish the death penalty in the past two years.)

— In New York, officials acted voluntarily earlier this month to repeal the notoriously harsh, Rockefeller drug laws, enacted in 1973, which mandated prison terms for non-violent drug offences, including mere possession. For nearly 40 years these laws filled New York’s prisons with non-violent offenders, serving mandatory sentences that sometimes exceeded the sentences for violent crimes. Minorities were targeted disproportionately: in 2007, a typical year, nearly 90 per cent of people imprisoned for drug offences were black or Latino, according to a report by the New York Civil Liberties Union (NYCLU), although ‘whites are the principal purveyors of drugs in the state’ (3). Families and communities were decimated by the illicit trade in drugs, which continued unabated, and the imprisonment of non-violent addicts; in 2009, this cruel and stupid system was expected to cost the state about $600million, which, even in the face of trillion-dollar recovery efforts, still seemed like real money.

Changing public attitudes toward non-violent drug users (particularly marijuana users) also helped make reform of these laws feasible; at least, it no longer required extraordinary political courage. According to the NYCLU report, the ‘great majority’ of New York state voters support drug treatment for non-violent offenders instead of imprisonment. In my state, Massachusetts, voters approved a 2008 ballot initiative de-criminalising possession of up to an ounce of marijuana, by a 65 to 35 per cent margin. As a result, students caught with small amounts of marijuana will not acquire criminal records, crippling their employment prospects and barring them from receiving any federal financial aid for their educations. Medical use of marijuana has overwhelming public support, according to the Drug Policy Alliance, and in a reversal of Bush administration policies, the Obama Justice Department has announced that it will not prosecute medical marijuana use when it is allowed by state law.

Letting alone dispensers of medical marijuana and sick people who find relief in it was the least the Obama administration could do and maybe the most it will do. The president was dismissive of proposals to legalise and tax marijuana raised during his recent ‘internet town hall’ on the economy, and he has long been opposed to legalisation. Does Obama believe that he should have been prosecuted for his own youthful illicit drug use, saddled with a criminal record and deprived of future job opportunities? The president doesn’t say.

During the presidential campaign, he was, however, quite critical of mandatory minimum sentences, particularly for non-violent offenders, emphasising their racially disparate impacts and promising to reduce the ‘ineffective warehousing of non-violent drug offenders’. But his attorney general, Eric Holder, has advocated harsh prison sentences for marijuana offences, and not surprisingly President Obama has differed sharply with candidate Obama, especially on controversial civil liberties issues: he has adopted Bush/Cheney policies on state secrets that he previously denounced, insisted that the government should generally be immune from civil suits for illegally spying on us, and endorsed the presidential appropriation of power to detain and imprison people abroad indefinitely, without any judicial review. With an agenda that includes healthcare and immigration reform, not to mention staving off depression, Obama seems unlikely to press for sensible sentencing policies and other criminal justice reforms.

Besides, Democrats have been fearful of appearing ‘soft on crime’ since Obama was in grade school in the late 1960s, when Richard Nixon campaigned for president on a promise to restore law and order in the midst of social unrest. The sentencing policies that have contributed to the current incarceration crisis followed some years later. Mandatory minimum prison sentences are as old as the republic: in 1790, piracy carried a mandatory life sentence under federal law; bribery of a harbour inspector carried a mandatory six-month prison term. But in the mid-1980s, Congress went on a sentencing rampage, imposing mandatory minimum prison terms on non-violent drug offences.

The states soon followed suit. In the early 1990s Washington state initiated a lamentable trend by enacting a ‘three time loser’ statute that imposed mandatory life sentences without parole on repeat felony offenders, with relatively little regard for the nature of their crimes. Qualifying felonies included promoting prostitution and petty robberies in which the victims were unharmed. One of the first people sentenced under this law was a small-time thief: his first offence was pushing his grandfather and taking $390 from him; his second offence was robbing $100 from a pizza parlour, by pretending to have a gun in his pocket; he repeated this trick for his third offence, the unarmed robbery of a sandwich shop.

California, with its overflowing prisons now in receivership, joined enthusiastically in this dangerous dumbing down of the justice system with its own harsh ‘three strike’ laws, eventually approved by the Supreme Court: in 2003, the court upheld the constitutionality of mandatory 25 years to life sentences imposed on two hapless men whose third felonies consisted respectively of shoplifting two video tapes from K-mart and three golf clubs (4).

It’s worth noting that voters are as much to blame as their elected officials for these draconian sentences. In Washington state and California, three-strikes laws were adopted by popular referendum, in 1993 and 1994 respectively, with the support of about three quarters of the voters. Fear of crime was politically potent in the 1990s, and in 1994, then President Bill Clinton signed into law a huge federal crime bill that significantly expanded federal criminal jurisdiction, added new federal death penalties, a federal three-strikes rule, and increased punishments for hate crimes.

Senators from both parties competed to demonstrate their toughness, occasionally acknowledging that it was unlikely to have much ameliorative effect on crime. ‘It’s no good kidding ourselves; some of these tough-on-crime amendments may not have tremendous effect’, Republican senator Orin Hatch remarked during the debate on the bill. But ‘we are sending a message across this country that the Congress has finally awakened’. (‘Awakened to what?’ you might ask. A penchant for knowingly passing laws for their rhetorical virtues?) Or, as Democratic senator and now vice-president Joe Biden said, ‘We are going to show everybody how tough we are… But I want to advertise as the author of the underlying bill, as the author of the death penalty amendments, they are not going to have much effect.’ (5)

But as the senators might have predicted, irrationally harsh federal and state penal laws, especially mandatory minimum sentences, had horrific effects, as Senator Webb has now stressed. Initially advocated by liberals who viewed them as solutions to discriminatory sentencing by judges and soon embraced by law and order sloganeers, mandatory minimums greatly expanded the unaccountable power of prosecutors – power they wielded with a vengeance.

Mistakenly lauded for taking discretion out of sentencing, mandatory minimums simply transfer to prosecutors sentencing discretion traditionally afforded to judges: when penal laws mandate rigid prison sentences from which judges may not deviate, prosecutors (who enjoy great discretion in determining whether and how to charge people) effectively decide how defendants will be sentenced when they decide how defendants will be charged. Since the vast majority of cases are plea bargained, and since the prospect of facing a mandatory prison sentence on conviction, regardless of mitigating factors, greatly increases the pressure to plead, even for innocent defendants, prosecutors armed with mandatory minimums also serve as judges and jurors, whose decisions are not generally subject to appeal.

This system has proved so disastrous, as a practical matter, and so unjust that even politicians more timid than Jim Webb have begun tentatively speaking against it, and sometimes even the most punitive judges rebel. Judges have long disliked this sentencing regime (not surprisingly, since it lessens judicial power), but they are generally loathe to invoke constitutional strictures against cruel and unusual punishment to invalidate sentences. Still, in December 2008 a federal appeals court struck down a 28 years to life prison sentence imposed on a sex offender in California who registered with police as required by law, but at the wrong time of year (6). The judge in this case was Jay Bybee, best known for his work in the Bush Justice Department when he signed a bone-chilling, 2002 memo justifying the torture of terror suspects. In other words, California’s sentencing rules seemed excessively harsh to someone who countenanced slamming a suspect against a wall and confining a man with a morbid fear of bugs in a small box that he is led to believe contains a stinging insect.

Maybe the spectre of prosecution for war crimes has imbued Bybee with newfound empathy for criminal defendants. Maybe he has always been able to compartmentalise the technocratic sadism that his torture memo bespeaks. And maybe his sudden regard for proportionality is no more dissonant than the willingness of legislators to enact harsh and arbitrary sentencing laws, while acknowledging their likely ineffectiveness, or the image of Americans as fundamentally decent despite the institutionalised indecencies of the justice system that so many helped shape.

Wendy Kaminer is a lawyer, writer and free speech activist. Her latest book is Worst Instincts: Cowardice, Conformity, and the ACLU (Buy this book from Amazon(UK).)

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Letter from America.

(1) Senator Jim Webb’s Floor Speech to Introduce ‘The National Criminal Justice Act of 2009’, 26 March 2009

(2) Court Orders California to Cut Prison Population, New York Times, 9 February 2009

(3) The Rockefeller Drug Laws: Unjust, Irrational, Ineffective, New York Civil Liberties Union

(4) LOCKYER V ANDRADE, Cornell University Law School; EWING V CALIFORNIA, Cornell University Law School

(5) p196, It’s All the Rage: Crime and Culture, Wendy Kaminer, Addison Wesley, 1995

(6) Justices rule three-strikes sentence unconstitutional, Los Angeles Times, 31 December 2008