Protect Us From the PROTECT Act

In April of this year, the PROTECT Act was passed by both houses of Congress and signed into law in only 30 days. It was officially meant to protect children, as the acronym – Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today -- indicates. Its most high profile component is the Amber Alert provision, which puts in place a rapid response system to help find and rescue kidnapped children. But in keeping with the double-speak that has typified this administration, at least one part of the PROTECT Act would cause substantial harm to children and young people. The Feeney Amendment limits judges’ discretion in criminal sentencing and encourages them not to make downward departures (more lenient sentences) from federal sentencing guidelines.

Not only does the act severely limit the ability of judges to depart from the federal sentencing guidelines, but it also requires that when they do, their actions are reported to Congress and Attorney General John Ashcroft, a big proponent of the legislation.

This means, essentially, that far fewer judges would be giving lighter sentences based on their own judgment about an individual case. A bulk of the people affected by this move would be children and young adults: young adults caught on non-violent drug or other charges, who would be far better served by compassion and a wake-up call than harsh punishment; and the children of women locked up for nonviolent drug-related crimes. This latter group is no small population – statistics show that the vast majority of incarcerated women were convicted of nonviolent drug-related offenses, and the majority of them have children.

But on Sept. 23, 2003 opponents of strict, determinate sentencing won a victory. A 27-judge panel headed by Chief Justice William H. Rehnquist unanimously voted to support the repeal of various provisions of PROTECT. Unfortunately, the vote has no binding power, although it is seen as a strong statement that is bound to influence legislation to come.

"This is definitely symbolic, it is something the legal profession will pay a lot of attention to," said Jesselyn McCurdy, legislative counsel for the American Civil Liberties Union (ACLU) in Washington D.C. "Judges have a lot of influence in the [legislative] process, and it is significant that this is an issue they are rallying around because they have nothing personal really to gain from it, it’s just something they’ve recognized as a matter of fairness."

The Judicial Conference voted to repeal the requirements that information on specific judges who give lighter sentences be reported to Congress and the Attorney General; that documents relating to cases be turned over to the House and Senate Judiciary Committees; that the Sentencing Commission institute guidelines to limit downward departures; and other measures.

"This is a very good development," said Mary Price, general counsel for the advocacy group Families Against Mandatory Minimums (FAMM), which opposes rigid determinate sentencing. "We want to ensure there is sufficient judicial discretion so judges can fit punishment to the offender."

This spring Sen. Edward Kennedy (D-Mass.), Sen. Patrick Leahy (D-Vermont) and Rep. John Conyers (D-Mich) introduced Senate and House bills of their own, called the JUDGES Act (Judicial Use of Discretion to Guarantee Equity in Sentencing), which would repeal the parts of PROTECT not specifically related to the exploitation of children. The act is pending in the Senate (S 1086) and House (HR2213).

Federal sentencing guidelines use a matrix where the offense is matched with the defendant’s criminal background to come up with a range of possible sentences. While sentences within this range are recommended, judges are specifically given the freedom to depart from these guidelines as they see necessary – this is the all-important component now under attack by PROTECT.

The debate over mandatory minimums and specifically the PROTECT Act can be seen as a central part of the debate over having a punitive versus a rehabilitative approach to criminal justice. As with the PATRIOT Act and other war on terrorism-related legislation, tough-on-crime legislation like PROTECT has long been driven by politicians playing on the public’s fears to gain support.

The day before the Judicial Conference’s vote, at a speech in Milwaukee John Ashcroft said, "Too many criminals have found their way back on the streets because some federal judges have exploited loopholes in the sentencing guidelines." But McCurdy notes that these "criminals" are often people like Kemba Smith, a mother sentenced to 25 years in prison for playing an extremely minor role in her boyfriend’s crack cocaine dealing operation. Smith was ultimately pardoned by President Clinton after spending six and a half years behind bars.

"What’s the public policy benefit of locking up someone like Kemba Smith, who has a child and has no real connection [to drug dealing] beyond obstruction of justice in regards to them getting to her boyfriend?" asked McCurdy.

Mandatory minimums (and by extension rigid sentencing guidelines) hit women particularly hard, since nonviolent drug crimes are the most common reason for women to be incarcerated. Like Smith, many of these women were not even actively selling or using the drugs themselves, but rather were convicted on conspiracy charges relating to their male partner’s drug activity. A woman convicted of conspiracy for answering the phone, driving to the bank or otherwise playing an extremely minor role in drug dealing can get the same sentence as the person who actually sells the drug.

In keeping with general trends in the criminal justice system, mandatory minimums, and by extension attacks on judicial discretion like PROTECT, hit minorities hardest. The skewed porportion of different racial groups in the prison system is well known – one in 20 African-American men are in state or federal prison, compared to one in 180 white men, according to Human Rights Watch, and two thirds of the about two million Americans in jail or prison are African-American or Hispanic.

One of the arenas where mandatory minimums have the most notable effect is in the war on drugs. These statutes institute draconian penalties for what many would see as relatively minor, victimless offenses like the mere possession of crack cocaine. The disparity in crack cocaine versus powder cocaine sentencing laws has been well-publicized. Only five grams of crack (the equivalent of five Sweet and Low packets) will get you a five year minimum sentence, whereas it takes 500 grams of powder cocaine for the same sentence, despite the fact that studies published in the Journal of the American Medical Association and elsewhere have determined that the two drugs are virtually identical in their effects. Needless to say, lower-income African-Americans are much more likely to be arrested for crack possession, while upper-income white people are more likely to be caught with powder.

With the increased public fear and governmental authority engendered by the war on terrorism, the battle to end mandatory minimums and protect judicial discretion may be harder than ever. "In the broader context of Ashcroft and the things he’s done to attack civil liberties, this is just one thing on a laundry list," said McCurdy.

But the Judicial Conference’s vote and the chorus of support it got from both the right and the left is encouraging – mandatory minimums are officially opposed by the National Association of Veteran Police Officers, the American Bar Association, the National Council of La Raza, the U.S. Sentencing Commission, each of the 11 federal judicial courts, former FBI director Louis Freeh, former Attorney General Edwin Meese and even former drug czar Barry McCaffrey, among others.

"People aren’t the same, that’s the problem here," said Price. "This cookie cutter approach to justice shouldn’t be what we’re striving for. We’re dealing with human beings, not situations that can be accounted for by a grid."

Kari Lydersen, a regular contributor to AlterNet, also writes for the Washington Post and is an instructor for the Urban Youth International Journalism Program in Chicago. She can be reached at karilyde@aol.com.

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