Mandatory Minimums: Cooperation on reform?

In the past weeks, mandatory minimums have made news as Attorney General Eric Holder, and the libertarian-leaning Republican junior senator from Kentucky, Rand Paul, partner to overturn mandatory minimum laws for non-violent drug offenders. Outcry over the existence of mandatory minimums, however, is nothing new. Political observers, civil rights advocates, and academics have raised concerns about the inequity and ineffectiveness of mandatory minimums at reducing crime since their debut in the Anti-Drug Abuse Act of 1986. Many a politically minded millennial has known about the racial inequality of mandatory minimums since they were in grade school, first having been exposed to the issue by an episode of Aaron Sorkin’s The West Wing that aired nearly fourteen years ago.

Congress has already taken some steps to rectify the inequity of mandatory minimums, passing the Fair Sentencing Act in 2010, which reduced the disparity in mandatory minimum sentencing for crack cocaine compared to powdered cocaine from 100 to 1 to 18 to 1 for all future cases. Holder’s focus now, is to make the changes retroactive, thereby reducing the sentences of nearly nine thousand inmates by an average of more than four years; 87.7 percent of these inmates would be African-American, a figure that hints at the large racial discrepancy that such mandatory minimums have created.

Senator Dick Durbin of Illinois introduced the Smarter Sentencing Act of 2013, which would make the 2010 law retroactive in addition to allowing judges greater discretion when sentencing nonviolent drug offenders with minimal criminal histories. This bill stands a fair chance of passing the Senate because its sponsors include Patrick Leahy, the chairman of the Senate Judiciary Committee, as well as Senator Paul and Senator Ted Cruz, a Tea Party favorite. While the bill may face some opposition, this combination of supporters should ensure its passage, at least in the Senate.

Senator Cruz’s support for the bill echoes another widely reported trend in the past week: far more Republicans, including many non-libertarians have begun to express support for mandatory minimum sentencing reform. This trend loomed large at the Conservative Political Action Conference (CPAC) this past week, where Texas governor, Rick Perry, led a seminar in which he described mandatory minimums as a "really bad idea," and advocated a “smart on crime” approach. Much of the conservative support for sentencing reform seems to be economic in nature. This is especially noticeable on the state level: as many states began to revisit their mandatory minimum laws during the recession, growth in spending on prisons grew faster than every portion of state budgets other than Medicaid. This growth generally occurred because, while state legislatures typically have discretion in funding other programs, such as education, they tend to be required by federal laws and court orders to devote a certain amount of money to corrections. The specific step of making the 2010 law retroactive would save an estimated $1.07 billion in total. While this amount is small in the context of the federal budget, federal prisons cost a total of $8.5 billion and make up more than 30 percent of the Department of Justice’s budget.

In addition to the Smarter Sentencing Act, Senators Paul and Leahy have co-sponsored the Justice Safety Valve Act of 2013. This law would provide that a federal court “may impose a sentence below a statutory minimum if the court finds that it is necessary to do so in order to…  avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct”. The net effect of this bill would be to allow judges to ignore mandatory minimums to prevent an unjust sentence in nearly all circumstances, practically abolishing the problem of mandatory minimums in the future. However, the bill would not address the 10,605 prisoners who were sentenced according to such minimums in the past; 38.5 percent of these offenders are African American, compared to 20.7 percent of all federal prisoners. Both Paul and Holder have recognized the significant civil rights implications of these statistics, hence their partnership. Despite this bill’s potential to eliminate entirely the negative impact of mandatory minimum sentencing, it currently stands relatively little chance of passing, with no other Republican co-sponsors and only five other Democratic ones.

Despite the promise of these two bills, as well as their potential to show bipartisan co-operation, many Republicans do not seem enthused at such cooperation, nor do they seem particularly committed to the goal of eliminating mandatory minimums. Specifically, Senator Chuck Grassley, the ranking member of the Senate Judiciary Committee, actually introduced new mandatory minimums in an amendment to Durbin’s Smarter Sentencing Act, demonstrating his lack of commitment to ending such discriminatory laws. In addition, at Perry’s CPAC seminar, influential conservative activist Grover Norquist argued that Republicans should cease cooperating with Democrats on sentencing reform and instead co-opt the issue, framing the argument in terms of the lack of trust conservatives have in any liberal-influenced solutions and emphasizing just how easy it could be for a rare bright spot of bipartisan cooperation on an important issue to fall apart.

Notwithstanding the risk that this bipartisan cooperation could easily collapse, the Smarter Sentencing Act will take a necessary step that should have occurred three years ago: actually correcting the effects of a misguided law that mandated massive sentencing disparities between powder and crack cocaine users. This bill seems as likely to pass as any substantive bill in the current Congress. While not great, the chance of passage is still fairly high. At the same time, however, the Justice Safety Valve Act is needed to further repair the civil and economic damage that resulted from mandatory minimums. While this bill does not seem likely to pass the current session of Congress, its bipartisan support as well as its fundamentally sound policy provisions should ensure that it or a similar measure will eventually eliminate the most severe grievances from mandatory minimums.

The image featured of Rand Paul  is from Gage Skidmore's Flickr. No alterations have been made.