Casualties of the Drug War: Congress and Mandatory Sentencing Reform

Steve Anderson

PLS 5173Steve Anderson

PLS 5173

Progress Report

During the 1970s and 1980s, the United States was suffering suffered from a

major epidemic of crack cocaine in the inner-cities. Particularly in African American

communities, this epidemic was leading to a massive wave of crime. New York State,

under the direction of Governor. Nelson Rockefeller, enacted a new, zero tolerance

approach to crime. He called for mandatory sentencing for drug possession and dealing

(Mann, 2013). In 1986, Congress passed the Anti-Drug Abuse Act, making possession

of controlled substance a crime and increasing penalties from fines to years in prison

(United States Congress, 1986). Theis was intended intent was to combat the major

crime wave and crack down on drug related crime. The new guidelines created a 100:1

disparity for possessing crack cocaine as opposed to the powdered form. This resulted

in a change in the way sentencing for certain crimes was carried out. This was a drastic

change from the previous 200 years of federal sentencing (Stith & Cabranes, 1998).

Fast forward to 2014, crime is down, but drug offenders have been incarcerated

in record numbers. Reformers have noted the ever increasing burden that has been

placed on the corrections systems across the country, particularly at the federal level

(Halloran, 2014) On top of these, many states have been moving towards

decriminalizing other drugs or placing drug offenders in treatment. Many states have

moved away from pursuing the “War on Drugs,” which has placed an extensive burden

on law enforcement and corrections systems. Even the Department of Justice has been

revisiting the issue, working to reduce the sentences of in drug cases and eliminate

mandatory minimum sentencing despite pushback from federal prosecutors and district

attorneys (Horwitz, 2014).

There have been calls at the federal level as well to change the policies towards

the “War on Drugs,” such as changing the sentencing guidelines for those convicted of

drug possession. The sentencing guidelines, which include mandatory minimum

sentences for drug possession and three strikes laws, have managed to increase the

United States prison population, but the effects on drug related crime have not

significantly dropped since the 1990s (FAMM, 2012). With increased scrutiny from

reform groups, former law enforcement officials and those in the criminal justice system,

especially in times of budget shortfalls, members of Congress are starting to reexamine

current sentencing laws. Both Democrats and Republicans have expressed concerns

over the effects of mass incarceration and are looking for legislative solutions to reduce

the number of those who go to prison. (Halloran, 2014).

The question that arises is how far the current proposals in Congress are willing

to go to reverse the upward trend in drug related incarceration. While there have been

calls from a number of academics, advocacy groups and legal organizations to reform

the current sentencing laws, only in the last few years have any changes come in terms

of reduction of sentences. This has been the first time since the Nixon administration

that there has been a reduction in mandatory sentences. I propose an examination of

the number of proposals bills in recent years to undo the damage caused by mandatory

minimum sentencing, along with an analysis of how much these proposals bills would

change the current laws and on the members of Congress who are pursuing these

changes. This is compared with information about correctional spending based on state

and federal data that may provide insights into the motives and reasons for supporting

sentencing reform.

In this research paper, I will look into the motivations of members of Congress for

reducing or ending mandatory minimum sentencing for non-violent drug crimes. I

hypothesize that representatives from states that have major prison populations will be

more likely to enter proposals to lower these penalties. In addition, I hypothesize that

Democrats are more likely than Republicans to support changes the mandatory

minimum sentencing structure. This can be analyzed by researching the number of bills

brought up in Congress since 2010, when the Fair Sentencing Act was signed into law,

that have attempted to reduce mandatory minimum sentencing.

Literature Review

From the onset of the implementation of mandatory minimum sentences,

researchers began the questioning how effective these laws would be in stopping drug

related crime. For one, the laws took away what would normally be the power of

discretion judges have in sentencing, giving most of the authority to the prosecutor’s

office (Schwarzer, 1992). The trend towards less discretion from judges started with the

Sentencing Reform Act of 1984 (SRA). This created a new independent commission,

called the United States Sentencing Commission, which would help refine sentencing

with the introduction of mandatory minimums two years later (Mascharka, 2001).

These laws also have changed the way other actors in the court system

approach cases. With prosecutors using mandatory minimums as leverage, and

offenders often being too poor to afford adequate council, more are willing to accept a

plea bargain in lieu of a much longer prison sentence (Lacasse & Payne, 1999). Though

the goal of these laws was to deter future drug dealers and users, researches have also

questioned the results that these laws have had on its intended targets. There has also

been concern that these laws have heavily affected neighborhoods with African

American presence, while the rates of drug use remain the same for African Americans,

Hispanics, and Whites (Human Rights Watch, 2013)

The results have included a massive increase in the prison population, with large

increases in sentences of life without the possibility of parole for non-violent drug

offenses based on mandatory minimum sentencing. (American Civil Liberties Union,

2013). The cost to taxpayers has been in the billions both at the federal and state level.

Although originally these laws disproportionately affected African American

communities, in recent years the methamphetamine epidemic in rural areas has brought

an increase in white offenders into the system facing long stretches in prison.

Representatives from rural white communities finally began to see what

Representatives from African American communities have been seeing for years. In

recent years, there has been bipartisan consensus that action must be taken. But

exactly what action would be taken? It will take years to undo the damage.

In terms of research towards mandatory minimum sentencing, there has been a

fair amount research into how the laws have affected populations in prison, spending

related to corrections, and a host of other issues related to the criminal justice system.

However, the research involving Congress and mandatory minimum sentencing beyond

the creation of the laws and the United States Sentencing Commission doesn’t amount

to much. Researchers have not focused on congressional motivation for implementing

these reforms. However, members do want reach out and identity with members of their

home districts. They will present themselves in a manner that reflects their connection

with their districts or state (Fenno, 1978). Areas that have high crime rates likely had

members reflect the need for tough on crime attitudes, while now areas that have had

large rates of constituents incarcerated may reflect a need for reform.

While there was substantial public support for these “tough on crime” policies

backpolicies back the 1980s, there has been a reversal in favor of mandatory

sentencing reform (Halloran, 2014). Why there has been a change has been the result

of many different factors. For one, violent crime has decreased continuously since the

1970s and 80s, during which being tough on crime was important for legislative and

electoral success (Vincent & and Hofer, 1994). With a reduction in violent crime, the

increase in the prison population has been attributed to an increase of arrests for drug

possession. The added measures of mandatory minimum sentencing hasmeasures of

mandatory minimum sentencing have resulted in more people staying in jail for longer

periods of time. This trend has continued until 2010, when large prisons began

programs to reduce populations that were far beyond capacity (Portero, 2013).

While there has been a reduction in violent crime, reports on the subject have not

concluded that mandatory minimum sentencing has been a major factor in helping to

reduce rates of crime. There has been a divide among lawmakers who came up in

times of high levels of crime versuversus. younger members who have seen decreasing

rates of crime but increases in the incarcerated population. There have been groups to

provide support on both sides on the issue. The American Civil Liberties Union, The

Sentencing Project, and Families Against Mandatory Minimums have been lobbying for

reforms to sentencing laws, while law enforcement organizations such as Fraternal

Order of Police and the National Sheriff's Association have supported the current

system.

Recently, there has been a major push to reduce the effect of mandatory

minimum sentencing, particularly for drug offenses. In 2010, President Barack Obama

signed the Fair Sentencing Act, which removed a five year mandatory sentence of first

time cocaine possession, and reduced the disparity from 100:1 to 18:1 among other

changes to reduce the impact of sentencing (GovTrack.us, 2009). The bill was

sponsored by Illinois Senator Dick Durbin, a Democrat and advocate for sentencing

reform. The bill has bipartisan supportship, including the cosponsorships of sixteen

Democrats, six Republicans and one Independent.

While the majority of support for sentencing reform has come from Democratic

members of Congress, there has been a rise in the number of Republicans showing

support for sentencing reform as well. For Democrats, it is seen as moral problem to

incarcerate non-violent drug offenders such long sentences, while Republicans, who

carry the banner of fiscal responsibility, have come on board to help slow the down the

ever rising cost of incarceration (Fetsch, 2014). While this has been the only bill that

has been become law relating to a reduction in mandatory minimum sentencing, there

have been a slew of new proposals that would add on to the Fair Sentencing Act. As of

this writing, the focus of the effects of mandatory minimums have been in the legal field,

measuring loss of discretion from judges, use of plea bargaining, and increased

incarceration. This paper helps to fill in the gaps of why members of Congress vote in

support of mandatory minimum sentencing reform.

In this researcharticle, I will look into the motivations of members of Congress for

reducing or ending mandatory minimum sentencing for non-violent drug crimes. I

hypothesize that representatives from states that have major prison populations will be

more likely to enter proposals to lower these penalties. In addition, I hypothesize that

Democrats are more likely than Republicans to support changes the mandatory

minimum sentencing structure. This can be analyzed by researching the number of bills

brought up in Congress since 2010, when the Fair Sentencing Act was signed into law,

that have attempted to reduce mandatory minimum sentencing.

Data and Methodology

Since there has been a major push for sentencing reform since 2010, I am

looking to will examine several bills related to sentencing reform and the members of

Congress who sponsor and cosponsor these bills. The bills to be examined are listed

from the Families Against Mandatory Minimums 2013 report, which indicates bills that

will have a major impact on the current sentencing reform structure. These include: The

Smarter Sentencing Act (S. 1410/H.R. 3382), The Justice Safety Valve Act (S. 619/H.R.

1695), Recidivism Reduction and Public Safety Act (S. 1675), and the Federal Prison

Reform Act (S. 1783) along with the 2010 Fair Sentencing Act which has already been

signed into law. These four bills are supported by sentencing reform groups. The

measures used rely on the available data based on corrections spending per state and

the sponsoring or cosponsoring of these bills to indicate support for sentencing reform.

For each of these bills, I will examine the number of sponsors and cosponsors

who are either DemocratDemocrat, Republican, or Independent. The information about

sponsorship and bill status will be obtained with GovTrack, a website that tracks that

status of legislation along with information about the bill and those who sponsored it.

Tohe compare the members to the cost of incarceration by state, I use a report

compiled by the Vera Institute of Justice. The report, The Price of Prisons: What

Incarceration Costs Taxpayers describes the taxpayer cost of incarcerating a sentenced

adult offender to state prison in 40 states. The members who sponsor these bills will

have the respective state correctional cost measured. The first hypothesis is that

Democrats will be more likely than Republicans to support legislation related to

mandatory sentencing, due to being on the side of this issue longer than Republican

members. The second hypothesis is that members who states have higher correctional

costs will be more likely to support sentencing reform.

Findings

When comparing how members voted, I first put the state’s members of

Congress together with correctional spending data. The following are graphs that

compare those who sponsored or co-sponsored certain bills with the level spent of

corrections per state.

Alabama

California

Connecticu

t

Deleware

Illinois

Iowa

Maryland

Massach

usetts

Michigan

Minnesota

Ohio

Oklahoma

Pennsylva

nia

Rhode Island

South CarolinaTexa

sUtah

Vermont

Virginia

Wisc

onsin$0

$1,000,000 $2,000,000 $3,000,000 $4,000,000 $5,000,000 $6,000,000 $7,000,000 $8,000,000 $9,000,000

2010 Fair Sentencing Act

States

Dol

lars

Spe

nt (M

illio

ns)

Alabama

California

Florida

Georgia

Illinois

Kentucky

Louisi

ana

Michigan

New YorkOhio

Oregon

Tennessee

Texas

Vermont

Virginia

0

2000000

4000000

6000000

8000000

Justice Safety Valve Act of 2013

State

Dolla

rs S

pent

(m

illio

ns)

Connecticut New York Ohio Rhode Island Texas Utah0

5000001000000150000020000002500000300000035000004000000

Recidivism Reduction and Public Safety Act of 2014

States

Dolla

rs S

pent

(mill

ions

)

Alaska

Connecticu

t

Deleware

Georgia

Illinois

Louisi

ana

KentuckyMaine

Maryland

Michigan

New Jerse

y

New Mexic

o

New York

Pennsylva

nia

Rhode Island

TexasUtah

Vermont

Virginia

Wisc

onsin0

5000001000000150000020000002500000300000035000004000000

Smarter Sentencing Act of 2014

States

Dolla

rs S

pent

(mill

ions

)

Many of the members of Congress who sponsored and cosponsored these bills

come from states with high cost for incarceration, with some states spending millions of

dollars for Fiscal Year 2010 based on the information collected by the Vera Institute1.

Here, we see that states with high levels or correctional spending were likely to have

members support bills for sentencing reform. When broken down into support by party,

we see Democrats more likely to sponsor and cosponsor bills, although all four bills

1 Alaska, New Mexico, Tennessee, Oregon, Massachusetts, and South Carolina did not provide correctional spending information to the Vera Institute. Their respective values show zero despite having members cosponsor the respective pieces of legislation.

received bipartisan support.

Bills Democrat Sponsors/cosponsors

Republican Sponsors/cosponsors

Independent Sponsors/cosponsors

2010 Fair Sentencing Act 17 6 1

Justice Safety Valve Act of 2013

16 3 0

Recidivism Reduction and Public Safety Act of 2014

3 5 0

Smarter Sentencing

Act of 2014

16 6 1

Table 1

The bills show three out of four having more support from Democrats than Republicans.

For both parties, many of those who supported the bills were likely to see the increase

in the prison population for a moral reason (Democrats) or because of budgetary

concerns (Republicans). Although one of the bills is in the House of Representatives,

we still see a similar divide with the other bills in the Senate.

Conclusion

As the prison population has continued to surge, locking up large parts of the

poor population, both black and white, the cost of incarceration continues to increase.

As of this date, The Smarter Sentencing Act passed 13-5 out of the Judicial Committee

with bipartisan support (Frumin, 2014). It will likely be one of many efforts made at the

federal level to help reduce the effect of mandatory minimum sentencing. This paper set

out to help fill gap on Congress members and their support for sentencing reform. Very

rarely has an issue caught support from different ends of the political spectrum. The

issue also has broad support from the public as part of a winding down of the War on

Drugs. More than six in 10 Americans say that governments moving away from

mandatory prison terms for drug violations is a good thing (PewResearch, 2014).

Members of Congress will likely have to deal with those who have had convictions prior

to the enactment of these reform laws and will have additional measures to be

analyzed.

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Nonviolent Offenses. New York, NY: ACLU.

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Fenno, R. (1978). Home Style: House Members in Their Districts. Glenview, IL: Addison-Wesley Educational Publishers Inc.

Fetsch, E. (2014, January 10). Different Motivations Lead to Bipartisan Support to End Mandatory Sentencing. Retrieved from Public Religion Reseach Institute: http://publicreligion.org/2014/01/mandatory-sentencing/

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http://www.ibtimes.com/drug-offenses-not-violent-crime-filling-federal-prisons-1047240

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Vincent, B. S., & Hofer, P. J. (1994). The Consequences of Mandatory Minimum Prison Terms: A Summary of Recent Findings. Washington D.C.: Federal Judicial Center.

Bibliography

American Civil Liberties Union. 2013. A Living Death: Life without Parole for Nonviolent Offenses. New York, NY: ACLU.

FAMM. 2012, April 13. Factsheet. Retrieved from Families Against Mandatory Minimums: http://famm.org/wp-content/uploads/2013/08/FS-Brief-History-of-Crack-Laws-4.13.pdf

Fenno, R. (978. Home Style: House Members in Their Districts. Glenview, IL: Addison-Wesley Educational Publishers Inc.

Fetsch, E. 2014. Different Motivations Lead to Bipartisan Support to End Mandatory Sentencing. Retrieved from Public Religion Reseach Institute: http://publicreligion.org/2014/01/mandatory-sentencing/

GovTrack.us. 2009. S. 1789 (111th): Fair Sentencing Act of 2010. Retrieved from GovTrack.us: http://www.govtrack.us/congress/bills/111/s1789

Halloran, L. 2014. How Long Is Too Long? Congress Revisits Mandatory Sentences. Retrieved 01 30, 2014, from National Public Radio: http://www.npr.org/blogs/itsallpolitics/2014/01/08/260797831/how-long-is-too-long-congress-revisits-mandatory-sentences

Human Rights Watch. 2013. An Offer You Can’t Refuse: How US Federal Prosecutors Force Drug Defendants to Plead Guilty. December 2013

Lacasse, C., & Payne, A. A. 1999. Federal Sentencing Guidelines and Mandatory Minimum Sentences: Do Defendants Bargain in. Journal of Law and Economics, 42(01), 245-270.

Mann, B. 2013. The Drug Laws That Changed How We Punish. Retrieved from NPR: http://www.npr.org/2013/02/14/171822608/the-drug-laws-that-changed-how-we-punish

Mascharka, C. 2001. Mandatory Minimum Sentences: Exemplifying the Law of Unintended Consequences. Florida State University Law Review, 28(4), 935-974.

Portero, A. 2013. Drug Offenses, Not Violent Crime, Filling Up Federal Prisons. Retrieved from International Business Times: http://www.ibtimes.com/drug-offenses-not-violent-crime-filling-federal-prisons-1047240

Schwarzer, W. w. 1992. Sentencing Guidelines and Mandatory Minimums: Mixing Apples and Oranges. Southern California Law Review, 405-411.

Stith, K., & Cabranes, J. A. 1998. Fear of Judging: Sentencing Guidelines in the Federal Courts. Chicago: University of Chicago Press.

United States Congress. 1986. H.R. 5484 Anti-Drug Abuse Act of 1986. Retrieved 01 29, 2014, from Govtrack.us: https://www.govtrack.us/congress/bills/99/hr5484

Vincent, B. S., & Hofer, P. J. 1994. The Consequences of Mandatory Minimum Prison Terms: A Summary of Recent Findings. Washington D.C.: Federal Judicial Center.