Restore Flexibility to U.S. Sentences

By Senator Paul Simon and Dave Kopel

National Law Journal, Dec. 16, 1996, page A15

Harsh laws and severe punishments, observed Confucius, are a sign that something is wrong with the state. But you don't need to be a brilliant philosopher to recognize that America's prisons are in a state of crisis.

Federal mandatory minimums have made a bad situation worse. In large part because the rigid minimums make no distinction among the circumstances of cases, today's sentences for non-violent crimes lack any semblance of balance. If a man helps unload a boat of hashish just once to pay for his wife's cancer treatments (an actual case), he is subject to the same minimum sentence as the mastermind of the whole scheme.

As a prime example of the irrationality of mandatory minimums, we should consider the sentencing disparity for users of different types of cocaine. Under the drug laws, five grams of crack cocaine draws the same mandatory minimum five-year sentence as 500 grams of powder cocaine. No scientific or crime-policy reason justifies the enormous 100-to-1 ratio. The gaping difference is particularly troubling because it has racially charged implications: Eighty-five percent of federal crack prisoners are African-American, while powder cocaine offenders are more likely to be white or Hispanic.

Furthermore, Congress appears to be in no mood to deal with this disturbing discrepancy. In 1995, the U.S. Sentencing Commission recommended that Congress abolish the crack/powder distinction and bring crack sentences in line with the already-strict sentences for powder cocaine. For the first time in history, Congress voted to reject the commission's advice, claiming that crack is associated with higher levels of violence.

We suggest, however, that it might be more sensible to target the violence rather than the drug of use. As a result of present policy, more than 20 percent of federal prisoners are low-level, non-violent drug offenders. Various 1996 congressional bills proposing increases in the mandatory minimum penalties for powder cocaine, methamphetamine and other drugs continue to undermine efforts of the Sentencing Commission to maintain rationality in the administration of justice. Chief Justice William H. Rehnquist has noted that mandatory minimums "frustrate the careful calibration of sentences from one end of the spectrum to the other that the guidelines were intended to accomplish."

Expensive as prison is, it can be a bargain when it keeps violent criminals from preying on the innocent. But loading our prisons with non-violent offenders, often for drug violations, means that there is less room for the more dangerous repeat criminals. The end result is that we have a higher percentage of people in prisons than any other nation on earth--South Africa being a distant second. And yet, although we have passed the dubious milestone of having more than a million Americans in prison, we feel less safe today than we formerly did.

Professionals Object

Criminal justice professionals agree that reform is needed. A survey of America's prison wardens found that they strongly oppose mandatory minimum sentences for drug offenders and that 65 percent of them believe we should reduce sentences for non-violent offenders, and increase them for violent criminals.

Like the wardens, almost all federal judges--including Reagan and Bush appointees--oppose inflexible mandatory sentences. The reason that we have highly-paid, experienced federal judges is to judge.

No sensible judge would send a young person to prison for five years without parole for a first offense involving possession of a small quantity of drugs. Judges can make the distinction between a person who makes a solitary mistake, and a person who directs a major criminal enterprise.

Yet, because of the congressionally imposed mandatory minimums, judges are prevented from taking the facts of a case into account during sentencing. Long ago, Plato wrote, "We should exhibit to the judges . . . the outline and form of the punishment to be inflicted . . . But when a state has good courts, and the judges are well trained and scrupulously tested, the determination of the penalties or punishments which shall be inflicted on the guilty may fairly and with advantage be left to them." That wisdom still stands.

Recent reports have suggested that crime rates have fallen, but there is no sign that the demagoguery associated with crime issues is waning. In their eagerness to pander to the mass media, politicians often sanction quick fixes. As the 105th Congress convenes, however, we can only hope that it will be less quick to satisfy the immediate desire for retribution. Long-term solutions, such as alternative sentencing for low-level nonviolent offenders, are needed in order to reintroduce balance into our sadly misguided sentencing policies--among which, mandatory minimums may well be the least constructive.

Paul Simon is the outgoing senior Senator from the State of Illinois; David B. Kopel is an associate policy analyst with the Cato Institute.

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