A Decade of Sentencing Reform

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“With respect to these drug offenders,” John DiIulio told me a decade ago, “the mandatory minimums have begun to go haywire.” In “Prison Conversion” (August/September 1999), I explained how DiIulio, a hard-nosed criminologist known for defending the cost-effectiveness of prisons, had come to oppose mandatory minimum sentences for drug offenders, which he believed were wasting resources that could be used to incapacitate predatory criminals.

Today mandatory minimums are still with us, but drug sentences have become less draconian in several significant ways. The most important development has been a series of Supreme Court rulings, culminating in the 2007 case Kimbrough v. United States, that gave judges more leeway to deviate from the federal sentencing guidelines that since the 1980s had dictated drug penalties. As a result of those decisions, judges are much freer to reject recommended sentences they deem excessively harsh.

The Supreme Court’s rulings did not affect mandatory minimums set by statute. But Congress may be on the verge of addressing an especially irrational feature of those penalties. Under current law, five grams of crack cocaine is treated the same as 500 grams of cocaine powder, triggering a five-year sentence; likewise, 50 grams of crack triggers the same 10-year penalty as five kilograms of powder. The distinction, which is not based on any inherent difference between the smoked and snorted forms of the drug, has led to striking racial disparities in punishment. Last July the House Judiciary Committee approved a bill that would eliminate the cocaine sentencing gap, a reform supported by the Obama administration. In March the Senate unanimously passed a compromise bill that would shrink the 100-to-1 weight ratio, making it 18 to 1, and eliminate mandatory minimums for first-time offenders charged with simple possession.

At the state level, New York last year repealed most of its remaining mandatory minimum sentences for drug offenses, first imposed by the Rockefeller drug laws of the 1970s. The reforms expanded the use of treatment as an alternative to incarceration and allowed the resentencing or parole of some prisoners serving especially long sentences.

Other states that have implemented substantial sentencing reforms include Rhode Island, which last year eliminated its mandatory minimums, and New Jersey, which in January repealed a mandatory three-year sentence for drug offenses committed in “drug-free zones.” Drug sentences also have been scaled back in Connecticut, Delaware, Indiana, Louisiana, Michigan, Minnesota, Mississippi, Nevada, New Mexico, and North Dakota.

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