Record of Failure

Eric Holder’s Decision to Back Away From Mandatory Drug Sentences Is a Positive Step

The Justice Department is doing what it can to distance itself from a failed policy, but legitimate legislative remedy is nowhere in sight, writes Jamelle Bouie.

Today, Attorney General Eric Holder will announce a major change to how the Justice Department will handle non-violent drug crimes. Holder will try to side-step mandatory minimum sentences for low-level offenders by asking them to omit the quantity of drugs seized when charges are filed. This would apply to dealers not judged to be part of a gang or cartel.

The goal is to avert the five to ten year sentences that have swelled the prison population while doing terrible harm to minority and low-income communities. “Although incarceration has a role to play in our justice system, widespread incarceration at the federal, state and local levels is both ineffective and unsustainable,” Holder’s speech says. “It imposes a significant economic burden—totaling $80 billion in 2010 alone—and it comes with human and moral costs that are impossible to calculate.”

This isn’t just a major shift for the Justice Department. It’s also another break from the past for a Democratic Party that’s slowly shedding the baggage of an earlier era. Mandatory minimum sentencing, after all, was a Democratic innovation, a direct response to President Ronald Reagan’s brutally effective 1984 reelection campaign, where he went beyond “soft-on-crime” labeling to accuse Democrats of a pro-criminal bias. “The liberal approach of coddling criminals didn’t work and never will,” said Reagan early that year, urging the Democratic Congress to pass his package of criminal justice reforms. “Nothing in our Constitution gives dangerous criminals a right to prey on innocent, law-abiding people,” he added.

In 1986, the death of Boston Celtics recruit Len Bias from a cocaine overdose put drugs (and crime) back in the national news, and gave Democrats a chance to demonstrate their “tough-on-crime” bona fides. Pushed on by Democratic Speaker Tip O’Neill—whose constituents were “consumed with anger and dismay about Bias’s death,” House lawmakers crafted a bill that introduced mandatory minimum sentences for drug crimes.

Within three months of its introduction in July, the Anti-Drug Abuse Act of 1986 had passed both chambers of Congress, just a few weeks before the November midterm elections. No hearings were held on mandatory minimum sentences, and the policy was all but rushed into law. House Majority Leader Jim Wright called the bill “a bipartisan and bicameral approach to the most serious social problem that confronts our country, the menace of deadly drugs.”

From the outset, there were clear problems (PDF) with mandatory minimums. Though rhetoric in support of the bill focused on “kingpins” and major drug dealers, the sentences were triggered by small amounts—much lower than those a high-level trafficker would be dealing with. To wit, at the time, a first-time offender could receive a five-year sentence without parole for selling as little as 5 grams of crack-cocaine, or 25 to 50 doses.

The advent of mandatory minimums neatly corresponds with an explosion (PDF) of the federal prison population, from roughly 25,000 in 1980, to nearly 80,000 by 1990, to over 150,000 in 2000, to 219,000 as of last year, a 30-year jump of almost 790 percent. Overall, helped along by similar policies, the number of people under some form of correction supervision—either prison, jail, or parole—has grown to 1 in every 31 adults (PDF).

What’s more, it’s not clear this has increased public safety. While the United States has seen a huge drop in crime since the 80s, it doesn’t correspond to the mass incarceration of drug users and other nonviolent offenders. Environmental lead abatement does a better job of explaining the crime decrease than almost any other variable.

It almost goes without saying that the aggressive implementation of these draconian anti-drug laws fell heaviest on communities of color. In particular, the massive sentencing disparity between crack and powder cocaine was a net that caught huge numbers of poor African Americans, who tended to purchase the former as a downscale, more affordable version of the latter. Blacks now compose an overwhelming portion of the incarcerated, with more than 1 million behind bars, despite their lower rates of drug use: African Americans represent 12 percent of drug users, but 38 percent of those arrested for drug crimes, and nearly 59 percent of those in state prison for drug offenses.

Civil rights and criminal justice groups have been campaigning against these laws for decades, but it’s only been in the last few years that the national mood has begun turning against them, the result of demographic change (we’re a younger, browner country than we were 25 years ago), changing attitudes towards drugs (every year, more Americans agree that drug use shouldn’t be a criminal offense), and the Great Recession, which has made the public more skeptical of costly endeavors like the “war on drugs.”

That Democrats would move forward on this makes sense, given the above: Not only does the party rely on non-white voters (and blacks in particular) for its success, but it is the direct political beneficiary of these trends. That said, President Obama has a mixed record on criminal justice issues. While his Department of Justice has cracked down on some medical marijuana dispensaries, he also signed a law in 2010 that significantly reduced the crack/powder cocaine sentencing disparity.

None of this is to discount the Republicans who have moved forward on sentencing reform, including Kentucky Senator Rand Paul—who has made it the centerpiece of his outreach to minority voters—and groups like Right on Crime, which actively support efforts to “reform the prison-industrial complex” and keep people out of jail for nonviolent offenses.

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For now, without further details, it’s hard to know the exact impact of Holder’s changes. While odds are good that the rate of incarceration for drug offenses will drop, this does nothing for the huge number of Americans still serving time for nonviolent drug crimes. At the least, it sends an important message: the United States is, slowly, moving away from mass incarceration.

Lasting reform, however, requires legislative action. And there the prospects are dim. Even if you could assemble a majority in the Senate to pass sentencing reform, you’d have to deal with the Republican House, which has little interest in anything that resembles governing. In 1986, a bipartisan Congress could act quickly to pass draconian anti-drug laws. Now, the consensus for change is growing, but our legislature is unable to respond to it, or anything.