The Scientific Activist

Mandatory sentencing laws are disliked by many, and for good reason. Judges often criticize these laws for taking away their judicial sovereignty, while others decry the inherent disparity in which they affect minorities and those of lower socioeconomic status. They often lead to inordinately severe punishments for arguably minor, generally drug-related, crimes. The good news is that, as The New York Times reported yesterday, there is reason to believe that some of the more extreme of these mandatory sentencing laws may change under the new Democratic Congress.

Examples of why these laws need to change abound:

At a sentencing last January Judge Walter S. Smith Jr., of the Western District of Texas, was required to add 10 years to the already mandated 10-year sentence in a crack distribution case because a gun was found under the defendant’s bed. During the sentencing, the judge stated, “This is one of those situations where I’d like to see a congressman sitting before me.”

In an impassioned written opinion in 2004, Judge Paul G. Cassell of the Federal District Court in Utah, who was appointed by President Bush, called the mandatory 55-year sentence he was forced to give a low-level marijuana dealer who possessed, but did not use or brandish, a firearm “simply irrational.”

In the opinion, Judge Cassell recommended a commutation of the sentence by the president, noting that the sentence, with consecutive 25-year terms for firearm possession, was longer than those required for an airport hijacker, second-degree murderer or a rapist.

Arguably the most outrageous and misguided mandatory sentencing laws, though, are those that apply to various forms of cocaine. As I’ve mentioned before, by mandating much more severe penalties for possession of lower amounts of crack cocaine as opposed to the generally white collar powder form of the drug, these laws have blatant racist and classist undertones, intentionally or not:

Currently, possessing five grams of crack brings an automatic five-year sentence. It takes 500 grams of powder cocaine to warrant the same sentence. Similarly disparate higher amounts of the drugs results in a 10-year sentence. The 100-to-1 disparity, opponents of the law say, unfairly singles out poor, largely black offenders, who are more likely than whites to be convicted of dealing crack cocaine.

At a sentencing commission hearing in November, Judge Walton, associate director of the White House Office of National Drug Control Policy under the first President George Bush and a onetime supporter of tough crack cocaine sentences, said it would be “unconscionable to maintain the current sentencing structure” on crack cocaine.

It is fortunate, then, that these particular laws are the most likely to be changed. They serve no useful purpose and, considering their overtly racist nature, should be repealed fully. Unfortunately, we will probably see only minor changes:

Mr. Sessions is a co-sponsor of a bill that would change the ratio for the two drugs to 20 to 1, increasing the amount of crack that brings a five-year sentence to 20 grams from 5, and lowering the powder cocaine trigger from 500 grams to 400 grams.

If a racist law is attenuated so that it is just a less severe racist law, the fundamental problem has not been addressed, so such a change should not be seen as an acceptable solution.

Regardless, change is afoot, and this will certainly be an interesting–and important–issue to follow in the next congress:

Judges have long been critical of the automatic prison terms, referred to as mandatory minimum sentences, which were most recently enacted by Congress in 1986 in part to stem the drug trade. Now influential judges across the ideological spectrum say that the combination of Democratic leadership and growing Republican support for modest change may provide the best chance in years for a review of the system….

The House Judiciary Committee, under the new leadership of Representative John Conyers Jr., Democrat of Michigan, is planning hearings on the laws, starting later this month or in early February. One of the first issues planned for review is the sentencing disparity between offenses involving powder and crack cocaine….

The Senate Judiciary Committee has no immediate plans for hearings. But Senator Jeff Sessions, Republican of Alabama, also supports some changes in the sentencing policy for crack cocaine convictions (though more modest than Mr. Conyers and some other Democrats favor), and Judiciary Committee staff members say a serious Senate review of the issue is likely in the current Congress.