Cracking Down on the Right Targets : Reform begins to touch mindless robocop sentencing

It didn't get the attention it should have. Section 80001 of the Violent Crime Control and Law Enforcement Act of 1994, signed by President Clinton this month, attracted far less notice than, say, the act's grants for new police officers. Yet Section 80001 represents at least a glimmer of hope that the increasingly counterproductive rules governing federal felony sentences might begin to ease.

Section 80001 gives federal judges the authority, in limited circumstances, to waive the severe mandatory-minimum sentences for low-level, first-time drug offenders that have been required by law. Long terms in federal prison for such offenders almost certainly do not make for the best use of that expensive space. Under 80001, first-time felons in low-level drug cases are eligible for lesser sentences if their offenses do not involve the use or threat of violence and if they cooperate fully with prosecutors by providing evidence.

FEAR OF BEING 'SOFT': Yet even these few permissible deviations from the indisputably harsh mandatory terms are less than what was originally proposed. Earlier versions of the mammoth crime control act would have made those changes retroactive, affecting perhaps 5,000 federal prisoners, already doing five to 10 years for relatively minor drug crimes. More violent criminals should occupy this prison space; at the least, retroactivity would have served to reduce dangerous overcrowding. Alas, retroactivity was abandoned by members of Congress who, despite the legislation's overriding focus on longer sentences, new offenses and more police officers, still feared being labeled as soft on crime. But the issue isn't about being soft on crime, it's about smart law enforcement.

Our view is that even relatively minor movement toward greater flexibility represents a welcome retrenchment from Congress' decade-long push for increasingly long, rigid terms, regardless of the specifics of the case. In the 1980s, Congress enacted a series of laws that set stratospherically high mandatory-minimum prison terms for people convicted of selling or possessing narcotics, even if the amounts were small and the circumstances mitigating. (Most states, copy-catting, enacted similar provisions.) In general, these anti-drug laws do not allow even nonviolent, low-level convicts to be paroled. A first-time offender with no history of violence can be--and some have been--sentenced to life for sale or possession of controlled substances including marijuana.

Judges have had no discretion under the federal guidelines; they simply look up the crime in the sentence tables, add time to the minimum term where required for "enhancements" to the crime, such as the use of a firearm, and then move on to the next case. Understandably, an increasing number of federal judges resent and resist this brainless sentencing scheme: Indeed, about 100 senior judges now refuse even to hear low-level drug cases.

PRISONS' NEW LOOK: Cumulatively, this component of the war on drugs has radically changed the federal prison population. In 1970 drug offenders made up 16% of all federal prisoners; now they are 62% of the total. By 1997, the U.S. Bureau of Prisons estimates, 70% of federal inmates will be serving time for drug crimes. Some federal prisons now house three times the number of people they were designed to hold. Nationwide, the system is operating at a combustible 40% above capacity.

Section 80001 is only the barest nod toward re-infusing our federal criminal justice system with a sense of proportion. For that reason, it should not be the last word from Congress or the U.S. Sentencing Commission (established by Congress to set the guidelines that judges must apply) on the Hydra-headed sentencing monster that has been created. The commission will soon be fully staffed for the first time in years. The time for further reform is at hand.

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