State of the Union

Obamacare vs. Dr. Evil’s Legal Eagles

Decades ago, a few friends and I were listening to Not For Kids Only, an album of Appalachian folk songs recorded for charity by Jerry Garcia and David Grisman. An older brother entered the scene, barking, “What’re you guys listening to? This stuff’s for kids!” My friend, who, it should be noted, was quite stoned, retorted, “No! It says right here—‘not’ for kids only.’ ”

I thought of my old buddy, bless his heart, when I learned of the D.C. Circuit’s ruling—its “ringing affirmation … of the rule of law,” according to the reliably florid Charles C.W. Cooke—on Obamacare’s insurance-exchange subsidies.

The right’s chortling reaction, in sum: It says right here — “Exchanges established by the State”!

I’d sincerely like to imagine that Cato’s Michael Cannon was stoned when he discovered this quirk in the text of the Affordable Care Act. But I’m afraid it’s a lot easier to imagine the pinkie ring and prideful guffawing of Mike Myers’s Dr. Evil.

I didn’t think “They’re going to make you buy broccoli next” could be topped.

Oh, was I wrong.

The two judges who comprised a majority of the D.C. Circuit panel argued that the government failed to provide evidence that the authors of the law did not intend to funnel subsidies through state exchanges only. Well, why would such evidence exist—if, as seems exceedingly likely, it never occurred to anyone that the subsidies were so structured until Cannon announced his discovery? “It was a carrot dangled in front of states, just like the promise of more Medicaid money,” the plaintiffs speculated. If so, then why the backstop of a federal exchange? What’s the point of the thing if not to convey subsidies to eligible customers? Much to the dismay of supporters of the ACA, there was no Plan B after the Supreme Court allowed states to opt out of the Medicaid expansion. And so the money remains unspent.

There’s no getting around the fact that those who drafted the law are guilty of a linguistic oversight. In a sane world, the matter would have been dispatched through a technical corrections bill, much as President Clinton and Congress ironed out a kink in U.S. Code that granted citizenship to those born abroad and one of whose parents was a U.S. citizen. Before the correction, the government granted citizenship only to those whose fathers were citizens.

But we’re not living in a sane world right now. We’re living in the world of massive resistance.

Don’t misunderstand. I’m hardly a fan of Obamacare. I’m with those who champion a cheaper and cleaner method of achieving universal coverage. I suppose it could be argued that the Halbig case is one way of getting there. But when its mastermind heads the “Anti-Universal Coverage Club,” I kind of doubt it.

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Is Religious Freedom Possible?

American Life League / cc

In a post for The Immanent Frame responding to the Hobby Lobby and Wheaton College decisions, Indiana University professor Winnifred Fallers Sullivan challenges the idea of religious freedom on which those decisions are based. Although a liberal, Sullivan does not deny that private firms and religious colleges are engaged in a kind of religious practice. Rather, she argues that because religion means different things to different people, it’s impossible to systematically distinguish legitimate “religious freedom” from mere rejection of the law:

The need to delimit what counts as protected religion is a need that is, of course, inherent in any legal regime that purports to protect all sincere religious persons, while insisting on the legal system’s right to deny that protection to those it deems uncivilized, or insufficiently liberal, whether they be polygamist Mormons, Native American peyote users, or conservative Christians with a gendered theology and politics. Such distinctions cannot be made on any principled basis…Both the majority and dissenting Justices in these two cases affirm—over and over again—a commitment to religious liberty and to the accommodation of sincere religious objections. Where they disagree is on what counts as an exercise of religion. Their common refusal, together with that of their predecessors, to acknowledge the impossibility of fairly delimiting what counts as religion has produced a thicket of circumlocutions and fictions that cannot, when all is said and done, obscure the absence of any compelling logic to support the laws that purport to protect religious freedom today.

The whole post rewards careful reading. One issue that Sullivan leaves unexamined is what counts as a “principled basis”. I take it that she means a non-historical, more or less universal definition, which would make it possible to distinguish religion from non-religion in a logically consistent way. And she’s right that no such definition exists. To mention only one example, the state cult of the Romans had little in common with what we understand by “religion” today.

But why should American law be based on universal principles that can be applied in a quasi-Kantian manner? A considerable historical literature suggests that the religion clauses of the Constitution emerged from the historical experience of Anglo-Protestantism. They were developed and applied in a society that was assumed to be overwhelmingly Christian and organized, for the most part, into recognizable denominations. Of course, there were always communities whose religion was inconsistent with these assumptions. But it was assumed that they would either be demographically marginal, or identifiable under Christian theological categories.

The problem, of course, is that this world no longer exists. And not only because of secularization or immigration by Catholics, Jews, and more recently Muslims. As Sullivan observes, the American brand of evangelicalism encourages individuals to decide for themselves what religion means to an historically unprecedented degree. So we face the challenge of applying historically and theologically specific concepts of religion, liberty, and so on in a way that obscures their limits and contingency. Thus the knots into which both sides of the Court have had to twist their arguments not only in Hobby Lobby, but also in cases such as Kiryas Joel Village School District v. Grumet.

There’s no obvious solution to this problem. We can neither revive Anglo-Protestant categories in a pluralistic society, nor can we formulate a definition of religion that will satisfy everyone. My own preference is for giving as much deference as possible, consistent with public order, to congregations, non-profit institutions, and yes, private firms, to act in ways that reflect their beliefs about what they owe to God and the world. But that means giving up the dream of cultural hegemony that today inspire the secular Left at least as strongly as it once did the religious Right.

(h/t Samuel Moyn, via Facebook).

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Seven Reasons Police Brutality Is Systemic, Not Anecdotal

Darrin Manning’s unprovoked “stop and frisk” encounter with the Philadelphia police left him hospitalized with a ruptured testicle. Neykeyia Parker was violently dragged out of her car and aggressively arrested in front of her young child for “trespassing” at her own apartment complex in Houston. A Georgia toddler was burned when police threw a flash grenade into his playpen during a raid, and the manager of a Chicago tanning salon was confronted by a raiding police officer bellowing that he would kill her and her family, captured on the salon’s surveillance. An elderly man in Ohio was left in need of facial reconstructive surgery after police entered his home without a warrant to sort out a dispute about a trailer.

These stories are a small selection of recent police brutality reports, as police misconduct has become a fixture of the news cycle.

But the plural of anecdote is not data, and the media is inevitably drawn toward tales of conflict. Despite the increasing frequency with which we hear of misbehaving cops, many Americans maintain a default respect for the man in uniform. As an NYPD assistant chief put it, “We don’t want a few bad apples or a few rogue cops damaging” the police’s good name.

This is an attractive proposal, certainly, but unfortunately it doesn’t hold up to scrutiny. Here are seven reasons why police misconduct is a systemic problem, not “a few bad apples”:

1. Many departments don’t provide adequate training in nonviolent solutions.

This is particularly obvious when it comes to dealing with family pets. “Police kill family dog” is practically its own subgenre of police brutality reports, and most of these cases—like the story of the Minnesota children who were made to sit, handcuffed, next to their dead and bleeding pet—are all too preventable. Some police departments have begun to train their officers to deal more appropriately with pets, but Thomas Aveni of the Police Policy Studies Council, a police consulting firm, says it’s still extremely rare. In the absence of this training, police are less likely to view violence as a last resort.

2. Standards for what constitutes brutality vary widely.

“Excess is in the eyes of the beholder,” explains William Terrill, a former police officer and professor of criminal justice at Michigan State. “To one officer ‘objectively reasonable’ means that if you don’t give me your license, I get to use soft hands, and in another town the same resistance means I can pull you through the car window, [or] I can tase you.” The special deference police are widely given in American culture feeds this inconsistency of standards, producing something of a legal Wild West. While national legislation would likely only complicate matters further, local or state-wide ballot propositions should allow the public—not the police—to define reasonable use of force.

3. Consequences for misconduct are minimal.

In central New Jersey, for instance, 99 percent of police brutality complaints are never investigated. Nor can that be explained away as stereotypical New Jersey corruption. Only one out of every three accused cops are convicted nationwide, while the conviction rate for civilians is literally double that. In Chicago, the numbers are even more skewed: There were 10,000 abuse complaints filed against the Chicago PD between 2002 and 2004, and just 19 of them ”resulted in meaningful disciplinary action.” On a national level, upwards of 95 percent of police misconduct cases referred for federal prosecution are declined by prosecutors because, as reported in USA Today, juries “are conditioned to believe cops, and victims’ credibility is often challenged.” Failure to remedy this police/civilian double standard cultivates an abuse-friendly legal environment.

4. Settlements are shifted to taxpayers.

Those officers who are found guilty of brutality typically find the settlement to their victims paid from city coffers. Research from Human Rights Watch reveals that in some places, taxpayers “are paying three times for officers who repeatedly commit abuses: once to cover their salaries while they commit abuses; next to pay settlements or civil jury awards against officers; and a third time through payments into police ‘defense’ funds provided by the cities.” In larger cities, these settlements easily cost the public tens of millions of dollars annually while removing a substantial incentive against police misconduct. Read More…

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Hobby Lobby Has Won, But Have We?

http://www.shutterstock.com/pic-126388286/stock-photo-the-united-states-supreme-court-in-washington-dc.html?src=D3B5-R5yAqiq7l1eHhW21w-1-1

Hobby Lobby has won. The big box craft store’s lawsuit challenging the contraceptive mandate regulation issued by the Department of Health and Human Services in its implementation of Obamacare had become seen as high-stakes test case determining the future balance between the religious liberty of conservative Christians and the mandates of sexual modernity. When the case was first heard back in March, Patrick Deneen weighed in here at TAC with a decidedly unorthodox argument. To Deneen, Christians relying on a big box retailer to represent them against a secular leviathan signaled “the culminating absurdity of what Polanyi called the ‘utopia’ of our modern economic disembedding”:

The dominant narrative—religious liberty against state-mandated contraception—altogether ignores the economic nature of the case, and the deeper connections between the economy in which Hobby Lobby successfully and eagerly engages and a society that embraces contraception, abortion, sterilization, and, altogether, infertility. Largely ignored is the fact Hobby Lobby is a significant player in a global economy that has separated markets from morality. Even as it is a Christian-themed brand, it operates in a decisively “secular” economic world. …

Hobby Lobby—like every chain store of its kind—participates in an economy that is no longer “religious” or even “moral.” That is, it participates in an economy that arose based on the rejection of the subordination of markets embedded within, and subject to, social and moral structures. This “Great Transformation” was detailed and described with great acuity by Karl Polanyi in his masterful 1944 book of that title. … As he succinctly described this “transformation,” previous economic arrangements in which markets were “embedded” within moral and social structures, practices, and customs were replaced by ones in which markets were liberated from those contexts, and shorn of controlling moral and religious norms and ends. …

How delicious he would doubtless find the irony of a “religious corporation” seeking to push back against the State’s understanding of humans as radically autonomous, individuated, biologically sterile, and even hostile to their offspring. For that “religious corporation” operates in an economic system in which it has been wholly disembedded from a pervasive moral and religious context. Its “religion” is no less individuated and “disembedded” than the conception of the self being advanced by the State. …

I hope Hobby Lobby wins its case. But we should not deceive ourselves for a minute that what we are seeing is the contestation between a religious corporation and a secular State. We are seeing, rather, the culminating absurdity of what Polanyi called the “utopia” of our modern economic disembedding—the absurdity of a chain store representing the voice of religion in the defense of life amid an economy and polity that values turning people and nature into things. Our entire economy is an education in how to be “pro-choice.” What it most certainly is not in any way, shape or form, is about helping us to understand our true condition as embedded human beings.

Scott Galupo responded to distinguish his position as “a counterweight to the despair of both moral traditionalists like Deneen and Dreher and market purists-slash-declinists like Kevin Williamson.” On the Hobby Lobby case in particular, he invoked Yuval Levin and Garry Wills to contrast the Obama administration’s drive from a more appropriately modest accommodation:

Here, Levin calls to mind Garry Wills’s distinction between the progressive-liberal “order of justice” and the “order of convenience.” To sum up a complex essay, Wills believed it should not be the aim of the state to dispense “raw justice” (Chesterton’s phrase), but rather to facilitate convenience (in the John Calhoun sense of the word—to “convene” or “concur” or bring about social peace). …

A proper order of convenience would be able to accommodate Hobby Lobby’s religious objections. On this matter and others, the Obama administration seeks an order of justice. I hope, in this case, that it loses.

Micah Mattix demurred from definitively judging Hobby Lobby’s particular moral merits, but criticized Deneen’s sweeping judgment against modern markets: Read More…

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The Washington Redskins Go to Trademark Court

When the U.S. Patent and Trademark Office issued a decision yesterday in favor of cancelling six trademarks registered by the Washington Redskins, critics saw the “landmark” decision to be indicative of an administration perennially on a mission to “find another federal agency to weaponize against its opponents.” The pseudo-judicial veneer on the bureaucratic act seemed to line up with such caricatures of politicized overreach, as did the opinion’s strong wording: “It is difficult to justify a balancing of equities where a registrant’s financial interest is weighed against human dignity.” But legally speaking, the decision was neither particularly important nor unusual.

The 2-1 decision was issued by the Trademark Trial and Appeal Board, a body within the USPTO that deals with cases lodged against trademarks that violate the laws under which the USPTO operates. The plaintiffs in this specific case claimed that the Redskins trademarks violate the federal law known as the Lanham Act, which requires that no trademark constitute “disparagement.” The details of interpreting “disparagement” are left to the judgment of the board, which drew upon previous cases to conclude that the trademarks had to be explicitly found disparaging by a “significant composite” of the relevant group, and that the owner of the trademark had to explicitly associate the trademark with that group.

That first requirement’s “significant composites” proved the key problem. In the majority opinion, Administrative Trademark Judge Karen Kuhlke explained that the views of the overall American public were not the central concern, but rather the views of Native Americans in particular. A “significant composite” of Native Americans did not have to be a statistical majority, either. Rather, the board judged that the 30 percent of Native Americans administratively represented by the National Congress of American Indians in 1993, when the organization adopted a resolution declaring the term (and team) “Redskins” offensive, would be sufficient.

All this is in keeping with the normal responsibilities of trademark judges. Read More…

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The Limits of Science in Matters of Justice

Chris Mooney of Mother Jones recently reviewed Harry Collins’s book, Are We All Scientific Experts Now?, and argued that the public has “no business challenging scientific experts.” Collins’s early work was actually an attempt to debunk the 1950s unthinking reverence for scientific expertise. “Coming out of the 1950s heyday, [Collins] argues, scientists were treated as almost mythic luminaries and geniuses who couldn’t be questioned. And that just wasn’t accurate.”

But Collins’s recent book, the subject of Mooney’s article, combats the subsequent devaluation of expertise brought on by popular skepticism of the scientific community. The assumption of a radically postmodern attitude toward the authority of information caused many to assume that knowledge, like belief, is purely socially constructed. This presupposition undermines much of the scientific community’s rhetorical clout, in addition to muddying the public forum: if expertise cannot be trusted, what can be?

But, as a recent National Geographic article points out, the authority of science has often been misappropriated, with dangerous consequences. For instance, it has been relied upon by the judicial system to legitimate unjust rulings: in one particularly infamous case, Buck v. Bell, the court cited scientific evidence to prove that reproduction on Carrie Buck’s part would burden society with criminality and imbecility. She was forcibly sterilized. Justice Oliver Wendell Holmes Jr. famously wrote in the opinion, “three generations of imbeciles are enough.”

The National Geographic article explores the implications for the use of scientific data in contemporary court cases, pointing out that genetics research is being pointed to by defense attorneys with increasing frequency in order to mitigate their clients’ sentences. But the author also takes note of the limitations of scientific findings when they are applied to complex human situations far from the laboratory. She notes that after the Newtown shooting, the Connecticut Medical Examiner took the unusual step of commissioning a screening of 20-year-old Adam Lanza‘s DNA:

The screen will find something. Each of us carries genetic mutations somewhere along our 3-billion-letter DNA code. Some mutations are benign, some are not; some have huge effects, others tiny. But there’s no way to know how (or whether) any of them affects behavior.

Another thing I’d bet on: The media (and the public) will use the results of that genetic screen to explain what Lanza did. We all want answers, and a genetic test seemingly provides a long string of them. Answers from science, no less. But, as was pointed out by many scientists and commentators at the time, searching for answers in Lanza’s DNA is futile. “There is no one-to-one relationship between genetics and mental health or between mental health and violence,” read an editorial in Nature. “Something as simple as a DNA sequence cannot explain anything as complex as behaviour.”

That’s just it: science answers questions of how, not why. Insofar as the American code of law was written to uphold a set of moral goods—the sanctity of human life, property, and liberty among them—the judgments of the courts are not strictly rational, but moral as well. Read More…

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For D.C. Schools, Brown Wasn’t Enough

When Brown v. Board of Education, the 9-0 Warren Court ruling, came down 60 years ago, desegregating America’s public schools, this writer was a sophomore at Gonzaga in Washington, D.C. In the shadow of the Capitol, Gonzaga was deep inside the city. And hitchhiking to school every day, one could see the “for sale” signs marching block by block out to Montgomery County, Maryland. Democratic and liberal Washington was not resisting integration, just exercising its right to flee its blessings by getting out of town. The white flight to the Washington suburbs was on.

When this writer graduated in 1956, all-white high schools of 1954 like McKinley Tech, Roosevelt, Coolidge, and Anacostia had been desegregated, but were on their way to becoming all black. Across the South, there was “massive resistance” to Brown, marked by the “Dixie Manifesto” of 1956, Gov. Orval Faubus’ effort to keep black students out of Little Rock Central High in 1957, and the defiance of U.S. court orders to desegregate the universities of Mississippi and Alabama by Govs. Ross Barnett and George Wallace. While he has received little credit, it was Richard Nixon who desegregated Southern schools. When he took office, not one in 10 black children was going to school with whites in the Old Confederacy. When Nixon left, the figure was close to 70 percent.

For nearly half a century, no black child has been denied entry to his or her neighborhood school because of race. Ought we not then, with Stephan and Abigail Thernstrom in the Wall Street Journal, celebrate Brown “as a truly heartening American success story”?

Certainly, by striking down state laws segregating school children, Brown advanced the cause of freedom. But as for realizing the hopes of black parents, that their children’s educational progress would now proceed alongside that of their new white classmates, it is not so easy to celebrate. For despite half a century of desegregation, three in four black and Hispanic children are in schools that are largely black and Hispanic. And the old racial gap in test scores has never been closed.

A May story in the Washington Post reports that not only has there been no gain in U.S. high school test scores in reading and math—the USA has been steadily sinking in rank in international competition—the disparity between black and white students has deepened. The quadrennial test given in 2013 to 92,000 12th-graders by the National Assessment of Education Progress, the nation’s report card, found that the test scores of Latino students are today as far behind those of whites’ as in 1999. The gap between white and black high school seniors in reading and math has widened. Read More…

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The Rights and Responsibilities of Search Engine Users

While truth has usually been a defense to charges of libel, Google is running into a higher standard in Europe. The European Union Court of Justice, considering the threat that Google can pose to privacy, seems to be applying a standard closer to the “Is it True? Is it Kind? Is it Necessary?” test.

In the press release announcing their decision, the European Court ruling found that Google was trampling on a right to be forgotten. Even if the information Google was linking to was accurate and lawfully published, Google and other search engines could be at fault for making that information too easy to find. Google wouldn’t have to purge this information preemptively, just in response to complaints, but, still, acceding to this ruling would still be tremendously difficult.

Google is already engaged in one enormous curation problem: policing content uploaded to YouTube. Although algorithms can detect piracy and copyright infringement, detecting obscenity still relies on the “I know it when I see it” test, which requires a human viewer. Google contractors have to watch content flagged as abusive, violent, or obscene in order to rule it in or out. Screening links for “relevance” would be emotionally easier than taking a shift in the YouTube curatorial department, but the judgement calls will be a lot harder to defend.

Google’s leadership presumably would like to avoid being dragged into culture fights, especially when only one month ago they faced controversy over the decision to purge ads for crisis pregnancy centers from searches related to abortion. But the European ruling could force them to play referee on a host of new issues. Google (in partnership with a European court) would now be expected to assess the relevance of any information and the prominence of the person filing.

Would Google have a duty to keep abreast of the employment history of the people asking to be removed from searches? If not, people just on the cusp of prominence might file general takedowns, to avoid the fate of the Benham brothers. Their show on HGTV was cancelled before it began when their Google histories of anti-gay marriage and anti-Islam activism caught up with them. Asking Google to manage your online identity would still be easier than the solution that former Google CEO Eric Schmidt once proposed: declare identity bankruptcy and legally change your name to escape your search results.

If Europe has an expansive view of the right to be forgotten, America has a sprawling understanding of the right to information. Anything that enters the public sphere, even phone calls recorded illegally, can be fair game for public comment and calls to action. Simply leaving your house and going to WalMart is enough to put you in the public eye as a public figure to be discussed and disparaged on People of Walmart.

Just because information is easy to come by, through Google or any other source, doesn’t exempt us from responsibility for seeking it out and acting upon it. Instead of depending on a right to be forgotten, our society is healthier when people choose to avert their eyes or look with charity.

The solution may not be for Google to become a curator but for searchers to learn to practice better custody of the eyes. After all, hasn’t the internet age taught us that large duties are easier to handle when they’re crowdsourced?


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Drop Those Wedding Rings in the Name of the Law

Most gay marriage lawsuits have been brought by couples, but, in North Carolina, it’s the clergy filing suit. Ministers from the United Church of Christ are going to federal court to claim that the state’s gay marriage ban encroaches on their religious liberty: North Carolina not only bans same-sex weddings at the courthouse, but holds ministers and other people authorized to conduct weddings liable if they perform unauthorized marriages.

The New York Times characterized the suit as “a novel legal attack on a state’s same-sex marriage ban” and Time noted that it was the “first time for a national Christian denomination to sue in favor of same-sex marriage.” The UCC suit is a hybrid case, which folds in some familiar claims about an intrinsic right to gay marriage into its religious liberty claims. If the North Carolina ban falls, it will likely be due to the familiar claims brought by the couples, not the novel religious liberty claims made by their pastors.

The suit has three sets of plaintiffs, making two different types of arguments. The first two classes of plaintiffs are the church itself and its ministers, both of whom are making a religious liberty claim about their ability to conduct marriages ceremonies in their churches. The third class is the gay couples themselves who are making both a religious liberty claim about church weddings as well as an equal protection and due process claim against the state’s ban on the legal recognition of gay marriages, which more closely resembles previous suits.

The North Carolina gay marriage amendment (passed as Amendment One, incorporated into the state constitution as Article XIV, Section 6) doesn’t limit religious liberty. The amendment does not make it illegal for same-sex couples to have private, unofficial marriage ceremonies, or to set up legal contracts to approximate the full rights and privileges of marriage as closely as they can. The amendment states:

Marriage between one man and one woman is the only domestic legal union that shall be valid or recognized in this State. This section does not prohibit a private party from entering into contracts with another private party; nor does this section prohibit courts from adjudicating the rights of private parties pursuant to such contracts.

A private ceremony becomes a crime if the officiant has been empowered by the state to conduct legal marriages. If a minister presides at one of these legally invalid marriages as forbidden by § 51-6, “No minister, officer, or any other person authorized to solemnize a marriage under the laws of this State shall perform a ceremony of marriage between a man and woman, or shall declare them to be husband and wife, until there is delivered to that person a license for the marriage of the said persons,” he or she can be fined up to $200 per couple, according to state statute § 51-7.

This restriction is part of North Carolina’s general code, and predates the gay marriage amendment. It is the law being contested under religious liberty claims. However, it’s less an anti-gay marriage provision than an anti-fraud law. The statute is the legal equivalent of banning notaries public from witnessing and stamping invalid or unofficial contracts, even if they promise to use a unofficial stamp. As long as they’re going through the same motions and procedures as when they conduct official state business, there’s the possibility for confusion. Read More…

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Conservative Sentencing Reform: Politically Savvy, Morally Right

Darlene Eckles was not a drug user or dealer when she was indicted in 2004. After her troubled brother Rick used her house to sell crack cocaine against her wishes, Darlene was arrested as a co-conspirator and offered a plea bargain of 10 years in prison. She rejected the deal in attempt to clear her name in court. But, after it was revealed that she counted Rick’s drug money in exchange for paying her electricity bill, Darlene was sentenced to nearly 20 years in prison as a first-time, nonviolent drug offender.

While Darlene’s story may seem exceptional at first glance, she is just one of the countless victims of mandatory sentences that oblige judges to deliver often lengthy prison terms to convicted criminals. While the practice has received harsh criticism over the past two decades, convicts like Darlene have an unexpected new allies. Fiscally conservative elected officials like Sens. Rand Paul and Mike Lee are leading the charge in Congress for federal sentencing reform, reforming the GOP’s stance on criminal justice in a way that could potentially attract new supporters.

This turn in conservative politics is rather surprising considering the history of mandatory minimums. Although its roots in American jurisprudence trace back to the 19th century, it was not until the height of the War on Drugs during Ronald Reagan’s presidency that mandatory sentencing started gaining steam. The Sentencing Reform Act of 1984 directed the United States Sentencing Commission to reduce the discretion district judges had on sentencing terms, through strict guidelines. Two years later, the Anti-Drug Abuse Act of 1986 imposed specified mandatory minimums for violations of federal controlled substance laws.

Like most policy pushes, mandatory minimums were undoubtedly passed with good intentions. Given the high drug crime rates of the 1980s, it’s understandable why legislators would want to tackle the problem with a no-nonsense sentencing approach. Furthermore, mandatory minimums even had an egalitarian appeal. Under the previous sentencing regime, judges had wide discretion in determining the length of prison terms, giving rise to arbitrary inequalities in sentences for people convicted of the same crime.

Unfortunately good intentions do not always give rise to good policy. Mandatory minimums’ attempt to rein in judges’ discretion only shifted the discretion to prosecutors, resulting in no significant decrease of sentencing inequality. In fact, many mandatory minimums seem as arbitrary as the previous legal regime. Most infamously, the Anti-Drug Abuse Act was criticized for discriminating against African-Americans by mandating a five-year sentence for possessing five grams of crack cocaine while imposing the same sentence for possession of 500 grams of powder cocaine.

As a result of these lengthy and inflexible sentencing requirements, America’s prison population has skyrocketed, turning the criminal justice issue into a fiscal one. Over the past three decades, the cost of operating state correctional facilities have roughly tripled, giving rise to conservatives’ ire and the current Congressional push for reform. Read More…

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