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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 [1] 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 [2]. 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 [3], giving rise to conservatives’ ire and the current Congressional push for reform.

There are currently two bipartisan sentencing reform bills on Capitol Hill’s docket: the Justice Safety Valve Act of 2013 [4], introduced by Sens. Rand Paul (R-Ky.) and Patrick Leah (D-Vt.), and the Smarter Sentencing Act of 2014 [5], introduced by Sens. Mike Lee (R-Utah) and Dick Durbin (D-Ill.). The former would allow district judges to depart from any mandatory minimum sentence “if the court finds that it is necessary to do so in order to avoid imposing” an unjust sentence. The latter would do the same with a significantly narrower scope, only applying to nonviolent drug crimes for defendants with less than two criminal history points as defined by the U.S. Sentencing Guidelines.

While Paul’s bill would have a wider effect, Lee’s is undoubtedly the more politically practical. Indeed, it already passed the Senate Judiciary Committee in January. But does either proposal have a realistic chance of enactment? Certainly the Obama Administration has made criminal justice reform one of its priorities of late, paving the way for a successful bipartisan effort. Besides the Department of Justice’s Smart on Crime criminal justice review launched last August, Attorney General Eric Holder made numerous pleas for Congressional action on reform.

However, with elections around the corner in November, it remains to be seen if Drug War rhetoric could scare incumbents up for reelection (particularly in the House) afraid of appearing “soft on crime.” The law enforcement lobby is already applying pressure [6] on key legislators. These candidates should keep in mind one notable poll [7] conducted by Families Against Mandatory Minimum that found “more than three-quarters of Americans (78 percent) feel the court, not Congress is best qualified to determine sentences.” Red states like Texas, Georgia, Missouri, and Oklahoma have also passed successful criminal justice reform without any repercussions to their conservative leadership.

Instead, Congressional Republicans should see sentencing reform as an opportunity to attract support from demographic groups outside their base. Like Gov. Jeb Bush and Sen. Marco Rubio’s outreach to the Hispanic community through calling for immigration reform, Sens. Paul and Lee’s push to reducing mandatory minimums has the potential to improve the GOP’s appeal to African-Americans.

Politics aside, sentencing reform is simply the right thing to do. Any system that allows people like Darlene Eckles to slip through the cracks with unfair sentences that do not fit their crime is morally bankrupt.

Casey Given is an editor at Young Voices [8], a project aiming to promote Millennials’ policy opinion in the media.

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#1 Comment By EliteCommInc. On April 29, 2014 @ 10:38 am

Minus the budget and illegal immigration (prevention) this is one of our most vexing.

They can have their smarter this and smarter that —

But we should admit that three strikes and minimum sentences guidelines — should just be stricken period and return discretion back to judges and communities.

Even that will not be enough. Because the Patriot Act is being successfully used to prosecute everything from stealing a loaf of bread to questioning police procedures —- the power of prosecutors has probably not been matched since Judge Roy Bean sat on the bench.

I do not comprehend any conservative who pushes to empower government’s ability to take away freedoms.

And no conservative should —

And those who claim to be christians should be the first in line — now being reminded that the wolf they set loose is now hounding them.

IRS, NSA, etc. My whine old school conservative whine: conservatives, the monster government you make is going to be the monster set loose by the beast. Do at least pretend to read scripture.

#2 Comment By Cascade Joe On April 29, 2014 @ 12:01 pm

Senator Dick Durbin has historically been at the forefront of “conservative” sentencing reform.

#3 Comment By ThomasH On April 29, 2014 @ 2:12 pm

The “good intentions” that minimum sentences and other “War on Drugs” aimed at was to elect “conservative” social warriors to office. Times change and it is no longer useful so tactics change as well. At some point the “War or Terror” (sorry, Ms. Palin) will also be abandoned.

#4 Comment By EliteCommInc. On April 30, 2014 @ 11:33 am

Notice,

I did not say, we should legalize marijuana use or decriminalize the use of drugs.

#5 Comment By PeterThreadkell On May 2, 2014 @ 12:55 pm

As a UK Citizen I found this an interesting article . This week there was a botched execution in Oklahoma which I think in common with many other people was barbaric
Why are many people in the USA still committed to this legal murder ?

#6 Pingback By Reducing Prison Populations | American Clarion On May 21, 2014 @ 8:32 am

[…] Two bipartisan bills are making their way through Congress. The Justice Safety Valve Act of 2013 and the Smarter Sentencing Act of 2014 both seek to provide judges with more freedom in sentencing.  The former essentially gives judges complete power to override mandatory minimums whenever they deem it necessary.  The latter is more narrow and mirrors AG Holder’s goals by granting judges discretion in cases of minor drug offenders. […]