Last stand for the drug warriors

Three decades ago, in announcing an initiative to curtail drug abuse, President Reagan compared the enforcement of drug laws to the Battle of Verdun -- one of the costliest and deadliest battles of World War I.  Six years later, Congress had passed laws imposing across-the-board mandatory minimum penalties for drug offenses, authorizing billions of dollars for enforcement, and establishing a national policy to create a “Drug-Free America.”

Thus the modern "War on Drugs" was born.  It has not aged well.

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In the past three decades, the number of people in federal prison has increased nearly 800 percent, primarily driven by mandatory minimum sentences for drug offenses.  Today, half of all federal prisoners are serving time on a drug charge.  Nearly three quarters of people imprisoned for a drug trafficking offense are black or Latino, even though people of all races use and sell drugs at roughly the same rates.  

Though federal drug penalties were aimed at breaking up drug cartels, they have largely missed their target.  Instead of punishing kingpins, mandatory minimums have resulted in long sentences for low-level operators.  Nearly half of those serving time in federal prison for a drug offense are mules, couriers, brokers, or street-level dealers, many struggling with drug abuse problems of their own.  

Meanwhile, despite tens of billions spent incarcerating federal drug offenders, there is little evidence that either drug crime or the availability of narcotics has been reduced.  Research over many years has shown that mandatory penalties are limited because they address the severity of punishment, not certainty.  Because most offenders do not expect to get caught, few think about the penalties they will face if convicted.  And while it’s debatable whether lengthy incarceration reduces crime, drug offenses are particularly immune to being affected by more and longer sentences.  As long as there is a demand for illegal drugs, there will be a ready supply of sellers.  

In the face of mounting evidence that our drug policy is failing, Congress has finally taken steps in recent months to revisit the federal drug sentencing regime.  In January, the Senate Judiciary Committee approved the Smarter Sentencing Act, a bipartisan bill that would take several incremental steps toward reforming mandatory minimum penalties for nonviolent drug offenses.  Co-authored by Republican Sen. Mike Lee (Utah) -- a former federal prosecutor -- and backed by a number of conservative Republicans, including Sens. Ted Cruz of Texas, Jeff Flake of Arizona and Rand Paul of Kentucky, the bill is aimed at ensuring that federal criminal justice resources are not wasted locking up nonviolent drug offenders.  

Given budget pressures and severe overcrowding in federal prisons, many hoped the Smarter Sentencing Act might reach the Senate floor before Memorial Day.  But those hopes were dashed in May as a trio of Senate Republicans announced their opposition to the bill.  In a letter to colleagues, Sens. John Cornyn (R-Texas), Chuck Grassley (R-Iowa) and Jeff Sessions (R-Ala.) wrote that the legislation “would benefit some of the most serious and dangerous offenders in the federal system.”  The senators raised the specter of a violent crime wave if minimum penalties for nonviolent drug offenses are reduced.  

Describing the Smarter Sentencing Act as a sort of “get out of jail free card” for dangerous criminals is highly misleading.  The bill would not eliminate a single mandatory minimum, nor would it reduce any maximum penalties.  Instead, it would allow judges greater discretion in low-level cases, while preserving long sentences for the most serious offenders.  According to sentencing expert Doug Berman, the measure would likely benefit only “true first-offenders who deal only a few ounces” of illegal narcotics.  That would free up resources for treatment, crime prevention, and programs to reduce recidivism.

That’s why the Smarter Sentencing Act has the backing not only of prison reform advocates and civil libertarians, but also of law enforcement.  More than 100 former Assistant United States Attorneys and judges have endorsed the bill, as has the Association of Prosecuting Attorneys and groups representing 100,000 rank-and-file police officers and nearly 30,000 prison guards.

Unfortunately, some longtime drug warriors seem intent on throwing cold water on the sentencing reform movement just as it is heating up.  Michele Leonhart, head of the Drug Enforcement Agency, recently testified that rather than unwinding the drug war, “we should be redoubling our efforts.”  A number of former federal law enforcement officials have argued that current drug sentencing penalties should be preserved.  

But we have tried incarcerating our way to a drug-free America, and that approach has failed.  Three decades later, evidence is mounting that federal drug laws have led to skyrocketing prison populations without making communities safer.  Meanwhile, illegal narcotics are as pure and as readily available as ever.  

Rather than caving in to the “tough on crime” rhetoric of another era, Congress should seize a rare opportunity for reform.  State after state has reduced drug sentencing penalties without jeopardizing public safety.  Polls show that Americans, Republican and Democrat, favor treatment over prison for nonviolent offenders. 

The old playbook on crime and punishment is worn out.  It’s time to take a new approach to nonviolent drug sentencing.

Haile is federal advocacy officer at The Sentencing Project.

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