Opinion: Amid gridlock, a surprising accord on drug-law sentencing

Reporters missed a story earlier this month when Attorney General Eric Holder announced new guidelines for his federal prosecutors in handling non-violent drug crimes.

Holder said President Obama plans to “reach out to members of Congress from both parties” to begin work on legislation to revise federal mandatory sentencing rules for people convicted of non-violent drug crimes.

“We’ve seen that this approach has bipartisan support in Congress where a number of leaders, including Sens. Dick Durbin (D-Ill.), Pat Leahy (D-Vt.), Mike Lee (R-Utah) and Rand Paul (R-Ky.) have introduced what I think is promising legislation aimed at giving federal judges more discretion in applying mandatory minimums to certain drug offenses,” Holder said.

“The president and I look forward to working with members of both parties to refine and advance these proposals,” Holder told the American Bar Association’s annual meeting on August 12.

In this era of deep political paralysis on Capitol Hill it should have been headline news that legislation revising sentencing guidelines for drug convicts is miraculously bringing together conservatives and liberals, even Tea Party conservatives and Obama.

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Immigration reform, budget deals and agreement on raising the debt ceiling are at the top of the agenda when Congress returns to Washington after Labor Day. But sentencing reform, unlike those hot button issues, is not a major public concern, according to polls. It is — at least at the moment — not politically explosive.

Conservatives, including Republicans such as Texas Gov. Rick Perry, who regularly use tough rhetoric about punishing criminals, have already signed on to the essence of what Holder and Obama want to see in congressional legislation. 

Even hardline conservative lobbying groups seem to be on board:

“It’s a step in the right direction, though about five years too late,” said Grover Norquist, president of Americans for Tax Reform, in an interview with Time magazine.

My Fox News colleague, former Arkansas Gov. Mike Huckabee, a strong conservative Republican, proclaimed on Twitter: “Finally found something I can agree with Eric Holder on — sentencing too many people to prison for non-violent drug crimes.”

The goal is to reduce the nation’s record prison population, now 40 percent over capacity. Conservatives as well as the president and attorney general are amazingly close to agreeing on the need to permanently revise thinking born during the crack epidemic of the 1980s that still has federal prosecutors asking for heavy mandatory sentences in 60 percent of cases involving any kind of illegal drugs. 

According to one report, more than 90 percent of the convicts are not drug kingpins but simply drug users or small-time peddlers involved only in drug-related crime.

As Holder noted in his speech, the U.S. population has grown by a third since 1980 while the nation’s prison population has increased an astounding 800 percent.

Much of the legislative framework for congressional action on lower federal sentences and alternative drug treatment programs is already in place.

Durbin and Lee, Democrat and Republican, have introduced a bill — “The Smarter Sentencing Act” — to revise the fixed sentencing guidelines for non-violent drug offenders. Leahy and Paul, another pairing across political lines, have introduced a similar bill — the “Justice Safety Valve Act of 2013” — which gives judges more discretion to break away from the current mandatory sentencing guidelines. This bill has already won bipartisan House endorsements.

After Holder’s speech, Paul seemed to indicate the administration is following his conservative, libertarian lead in wrapping its arms around the idea of reducing prison sentences and cutting the cost that comes with housing so many prisoners.

“I am encouraged that the president and the attorney general agree with me that mandatory minimum sentences for non-violent offenders promote injustice and do not serve public safety,” Paul said.

In fact, Paul’s home state, Kentucky, as well as other GOP strongholds, including Arkansas and Texas, have already put in place programs to explore the impact of lesser drug sentences. In Kentucky, as Holder told the ABA, the prison population is being reduced by an estimated 3,000 inmates over the next decade, which will net savings of $400 million. Texas, Holder said, has reduced its prison population by 5,000 in the last year with new approaches to drug treatment and parole. Arkansas cut 1400 prisoners with a similar plan.

“Clearly these strategies work,” Holder said. “They’ve attracted overwhelming, bipartisan support in ‘red states’ as well as ‘blue states.’ And it is past time for others to take notice.”

Jennifer Palmieri, the White House communications director, confirmed to me Holder’s announcement that the president’s fall agenda will include meeting “with folks in Congress who are pursuing legislation as well as governors and mayors who have done innovative work on this issue.”

The president’s personal attention to the issue could spark some conservative opposition because of their personal antipathy to him. 

But with existing support for the idea among Republicans on the Hill and in statehouses nationwide there is also a chance that a White House push on sentencing reform will raise public awareness, generate public support and gain the votes in Congress needed to enact potentially historic changes to 1980s sentencing laws that came out of the “War on Drugs.”

With the president and a line-up of his usual antagonists behind the same bill, the momentum for sentencing reform could be unstoppable. The result will be one of the biggest surprises of all the years of the Obama presidency — a bipartisan success in passing new laws to reduce the nation’s prison population.