The devil is in the details is a truism, and certainly true of the Senate’s sentencing reform law. That it’s bipartisan, a word rarely used in the past two decades, conveys a special meaning to advocates: this is the best you’re gonna get, as your champions of reform have surrendered to Chuck Grassley. Take it or leave it.
And indeed, advocates of sentencing reform, such as FAMM, know when they’ve been beaten, and so they’re lining up behind this bill. We’re not privy to their kitchen table talks, but it’s impossible to imagine they don’t realize that this is a mutt. Still, a mutt is better than a dog that’s dead on arrival. Those are the compromises advocates tend to make.
But of the terms of the bill, the actual words that come into play in real courtrooms, with real defendants, in real life, are what the janitors of the law are left to clean up. And they are, indeed, a mess.
The New York Times, unsurprisingly, has given its blessing to this mutt bill, and in the process, has demonstrated yet again that it has no clue what’s in there.
Among the most significant are those that would reduce mandatory-minimum sentences for many drug crimes.
These may seem like minor tweaks to pointlessly long sentences, and for the most part they are. But when half of all federal inmates are in for drug crimes, even small changes can make a real difference.
“Even small changes can make a real difference” belongs in a fortune cookie. At best, they are “minor tweaks to pointlessly long sentences.” When a sentence that ran ten years before the Sentencing Guidelines was bumped up to life, and now, provided certain conditions be met that few prisoners (except the mythical low-level, non-violent first-offender) could possibly meet, gets, potentially, a few years off the back end, it’s nothing to write home about. How many will die in prison waiting for that backend reward to come?
In addition, the bill would give federal judges more power to impose sentences below the mandatory minimum in certain cases, rather than being forced to apply a strict formula. This would shift some power away from prosecutors, who coax plea deals in more than 97 percent of cases, often by threatening defendants with outrageously long punishments.
But this is the most cynical, most misleading, of the “reforms.” What it refers to is Section 103 of the bill:
Section 103. Creates a Second Safety Valve that Preserves but Targets the 10-Year Mandatory Minimum to Certain Drug Offenders. A second safety valve is created that preserves but targets the existing 10-year mandatory minimum to (1) offenders who performed an enhanced role in the offense or (2) otherwise served as an importer, exporter, high-level distributor or supplier, wholesaler, or manufacturer. Consistent with the existing safety valve, the offender must not have used violence or a firearm or been a member of a continuing criminal enterprise, and the offense must not have resulted in death or serious bodily injury. The defendant must also truthfully “proffer” with the government and provide any and all information and evidence the defendant has about the offense. This provision also excludes offenders with prior serious drug or serious violent convictions or offenders who distributed drugs to or with a person under the age of 18. This provision is not retroactive.
Under the existing Safety Valve, a low-level defendant is required to “proffer” in order to get out from under the mandatory minimum. The word “proffer” is a euphemism for rat out his co-defendants. The difference is that the defendant wouldn’t be subject to “enhancements” for his role in the offense or prior convictions.
Under the new bill, defendants with “enhancements” or priors are still subject to the 10-year mandatory minimum unless they, too, become rats and proffer to the government, in a form the government believes to be “truthful,” “any and all information and evidence the defendant has about the offense.”
This law doesn’t eliminate the ten year mandatory minimum. It creates a new path for the government to coerce snitching from people who wouldn’t snitch before.
Yet, the Times, and almost all commenters, believe that “this would shift some power away from prosecutors, who coax plea deals.” On the contrary, it extends the prosecutor’s power to coerce snitching.
But doesn’t this reform have a significant benefit for many? Won’t it go a long way in reducing our national shame of mass incarceration?
In particular, 6,500 prisoners are still serving time under an old law that punished crack-cocaine offenses far more severely than powder-cocaine offenses.
As of today, there are 205,795 prisoners in federal custody. While the 6,500 estimate of prisoners who might benefit is quite rosy, since a significant percentage has other charges, such as “use and carry” of a weapon, that preclude any benefit, let’s accept that number for the sake of argument.
That means a grand total of 3.16% of federal prisoners may be able to get a sentence reduction. Not a big sentence reduction, but a reduction. They won’t be coming home anytime soon. And that’s for a law that was so insanely misguided in the first instance, a 100 to 1 disparity for crack versus powdered cocaine, that no rational nation should have ever used it in the first place.
Some will find no problem in turning every defendant into a coerced snitch. After all, we’ve spent so much time adoring the mythical “good guy” prisoner, and consequently despising the real defendants for whom life plus cancer is good enough, our national mindset is that the bad dudes should rot in hell forever and no one will shed a tear.
If you focus only on the wrongfully convicted or the low-level, non-violent first-offender, and ignore the reality that these are not the people filling our prisons with sentences of forever, maybe this reform doesn’t strike you as too meaningless.
But after the party is over, what we will be left with is pretty much the same mass incarceration we have now, the same outrageously long sentences that find no rational justification anywhere, and a whole new crop of potential snitches to facilitate the government’s putting more people in prison.
Was this the reform you had in mind?