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Less Talk, More Action on Mandatory Sentencing

Justices Breyer, Kennedy and Rehnquist have made it publicly clear that mandatory sentencing is wasteful, harmful, and threatens the legal independence of judges. But will they dump the law?
 
 
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Supreme Court Justice's Stephen G. Breyer, Anthony M. Kennedy, and even William Rehnquist have publicly said it's time to scrap or at least modify the minimum mandatory sentencing laws. Congress began enacting these laws in 1986. The idea initially was to use these laws to rid the streets of violent drug kingpins. The rub is that the laws strip judges of much of their discretionary legal authority to impose sentences.

Let's say a poor, desperate single mother sells a small amount of drugs to get money to feed her children. If she is caught, under the mandatory sentencing law a judge has little choice but to toss the book at her. This is not an extreme example. There are countless heartbreak cases of needy women who have committed non-violent drug crimes and have been hit with sentences that range from 10 years to life imprisonment.

The majority of these women are poor, ill educated, and black. They fit the increasingly standard, and disturbing profile of thousands of federal prisoners. Though studies confirm that black illicit drug use is no greater than that of whites, black drug offenders are less likely to be offered a chance to plea bargain, more likely to fall under federal or state minimum mandatory sentencing laws, and will serve a sentence nearly double that of whites.

The escalation in black incarceration is the single biggest cause of the massive bulge in the number of inmates in federal prisons. Their number has jumped four fold since the late 1980s, and more than half of them are there for drug crimes.

They are the pitiful scapegoats for America's crime and drug problem. The pattern began in the 1980s when much of the media instantly turned the drug problem into a black problem and played it up big in racially tinged crime sensationalist news stories and features. Many states bought into the black=crime wave panic and quickly passed a wave of three strike, two strike, and mandatory drug sentencing laws.

These laws wreaked havoc on many black communities and families. At present, a handful of states permanently ban ex-felons from voting; over half of those disenfranchised are black men. The voting ban diminishes the political power of the black communities. Women convicted of felony drug offenses are also barred for life from receiving welfare benefits. This puts thousands of women and their children at dire social risk and increases the likelihood that they will commit more crimes. The high black imprisonment rate also drastically increases health risks and costs in black communities, since many prisoners are released with chronic medical afflictions, particularly HIV/AIDS.

But the mandatory sentencing laws have been costly white elephants, and have done nothing to curb violent crime. More states realize that stuffing thousands in jail cells is no cure for crime and drug ills. In states such as California and New York, courts are much more willing to send people to drug treatment programs rather than prison. And a growing number of states have repealed or modified their mandatory sentencing laws.

Many judges have spoken out, and in at least one case, resigned from the bench in protest against the mandatory sentencing laws. Rehnquist and Kennedy's big gripe about the mandatory sentencing laws is that they violate the authority of judges to dispense justice, and thereby reduces them to impotent, legal figureheads.

But the Bush administration not only hasn't budged on changing the mandatory laws, but has fought back against any attempt to soften them. Earlier this year, Attorney General John Ashcroft prodded Congress to pass the Feeney Amendment that virtually mandates appeals courts to step in and toughen lenient sentences imposed by back-sliding judges. Ashcroft has saber-rattled judges by demanding that government lawyers finger light sentencing judges.

Despite the AG's bluster there is no evidence that judges are in angry revolt against the laws. According to government figures, in 2001, in more than 80 percent of the cases that required mandatory sentences, judges were more than willing to impose them. In South Carolina, judges departed from the minimum sentencing guidelines in only 2 percent of the cases. Most judges can read the political tea leaves, and like many politicians they regard crime as too volatile an issue. Few are willing to oppose these laws and risk being tarred as soft on crime.

Breyer, Kennedy and Rehnquist have made it publicly clear that the federal mandatory sentencing laws are wasteful, harmful, and threaten the legal independence of judges. Sooner or later, a test case will wind its way up to the high court that will test the legality and fairness of the mandatory sentencing laws. The dissenting justices will then have their chance to say enough is enough, and dump the laws. The question is, will they?

Earl Ofari Hutchinson is an author and political analyst. Visit his news and opinion website: www.thehutchinsonreport.com He is the author of The Crisis in Black and Black (Middle Passage Press).