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April 22, 2005 - The Drug War Chronicle (US Web)

Feature: House Conservatives Pushing Bill to "Fix" Sentencing, Increase Mandatory Minimums, Create New Drug Crimes

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House conservatives led by Judiciary Committee chairman Rep. James Sensenbrenner (R-WI) are moving ahead with a draconian anti-drug bill that would set harsh new mandatory minimum sentences for federal drug crimes as well as creating new drug crimes with even more harsh mandatory minimums. The bill passed the House Judiciary Subcommittee on Crime, Terrorism, and Homeland Security on April 12, and while a Judiciary Committee vote some feared could take place as early as this week has not yet occurred, the bill is alive and could move quickly.

Drug and sentencing reform advocates grouped in the Justice Roundtable have banded together to oppose the measure, with lead roles taken by the Open Society Institute, the Drug Policy Alliance, Families Against Mandatory Minimums, the Justice Policy Institute, La Raza, the Marijuana Policy Project, and The Sentencing Project. The groups have created a web site -- -- that provides information and a template for letters to Congress on the issue.

Gifted with the Orwellian title of "Defending America's Most Vulnerable: Safe Access to Drug Treatment and Child Protection Act," HR 1528 might more appropriately be known as the "Federal Prison Drug Offender Overflow Assurance Act." Among the bill's most egregious provisions:

  • "Fixing" federal sentencing rules thrown into doubt by recent Supreme Court cases by making the existing federal sentencing guidelines into a system of mandatory minimum sentences. Judges are forbidden in all but a few cases from departing below the guideline sentence.
  • Making the sale of a controlled substance, including more than five grams of marijuana, by a person older than 21 to a person younger than 18 a felony subject to a 10-year mandatory minimum sentence. A second offender would face a mandatory life sentence, as would someone charged with that crime who had already been convicted of another drug charge.
  • Increasing to five years the mandatory minimum sentence for anyone convicted of drug sales within 1,000 feet of a school, college, public library, drug treatment facility, or, for good measure, a video arcade.
  • Making selling a controlled substance to someone who has ever been in drug treatment a felony with a five-year mandatory minimum sentence.
  • Creating a new three-year mandatory minimum sentence for parents who know of drug trafficking activity near their children and do not report it to police within 24 hours.
  • Creating a new 10-year mandatory minimum sentence for parent convicted of a drug trafficking offense in or near the presence of their minor child; i.e. in the same car or same house.
  • Eliminating the federal "safety valve" by granting exceptions only when the person has pled guilty to the most serious offense and "assisted substantially in the investigation and prosecution of another person." Such departures are expressly prohibited in cases where drugs were possessed or distributed near a minor, if the defendant did not cooperate quickly and fully in the investigation against him, or if he provided misleading or incomplete information to prosecutors.
  • Punishing defendants for the "relevant conduct" of co-conspirators even if that conduct occurred before the defendant joined the conspiracy.

"For all these reasons, FAMM opposes HR 1528," said the Washington-based sentencing reform organization, which is urging its members to prepare to contact legislators (or to contact them immediately if they sit on the House Judiciary Committee). The bill is "disastrous," the group said in a news release this week.

"This is one of the worst, most needlessly draconian bills I've seen in 10 years in Washington," said Drug Policy Alliance national political affairs director Bill Piper. "It is shocking that Sensenbrenner would introduce such a bill both because it contains a bunch of brand new mandatory minimums when everyone else is criticizing them and because with its sentencing 'fix' and tightening up the safety valve it seems to fly in the face of what representatives voted for six years ago, when they moved to let first-time low-level offenders escape mandatory minimums," he told DRCNet.

"It's a bill that goes way too far," said Steve Fox, director of government relations for the Marijuana Policy Project. "It proposes incredibly harsh penalties for infractions such as 'enticing' someone who was once upon a time in drug treatment to smoke a joint. That would be a five-year sentence for a first offender," he told DRCNet. "And 10 years for distribution of marijuana to a minor. Even members of Congress were asking if that meant someone could go to prison for 10 years for sharing a joint at a fraternity party. Ten-year mandatory minimums are insane!"

The bill combines reflexive drug-fighting with burning conservative hostility to the federal judiciary, said Piper. "Sensenbrenner and others have this sense that judges aren't punishing people enough, that they have too much discretion. There is a whole sort of craziness going on up here around judges, a feeling that they're a law unto themselves, that they're legislating from the bench. Then you have things like same sex marriage and Terry Schiavo, and it all just kind of blends together in a hatred of judges," Piper said.

But the very hostility toward the judiciary and desire for stiffer punishments that have impelled the bill forward so far may serve to kill it in the end -- it may be too mucheven for this Republican-controlled conservative Congress. "There is definitely a sense in Congress, even among Republicans, that they should just wait and see how the sentencing stuff plays out before they over-react," said Piper. "We have that going for us. We can use that same 'wait and see' argument with the mandatory minimums as well. It may not be much noticed, but there is a growing trend of conservatives talking about the over-federalization of crime, and if you look at the Sensenbrenner bill, you see that state laws are able to prosecute the offenses it describes. It's one thing to create new federal laws to toughen penalties on international drug traffickers, but it's something else altogether to make a federal crime out of selling an eighth-ounce of marijuana or a gram of cocaine outside a drug treatment center."

"The bill is not flying through," agreed MPP's Fox. "Our sense is that the sentencing 'fix,' which we thought might be a reason for the bill to move quickly, has now ended up being more of a source of controversy than we originally anticipated. There are even some Republicans who are questioning the wisdom of not only that, but of mandatory minimums themselves." Two subcommittee members, Reps. Dan Lundgren (R-CA) and Louie Gohmert (R-TX) expressed skepticism about mandatory minimums and when the bill was voted on, only voted present, Fox noted.

The bill could move forward if the sentencing "fix" provision were eliminated, Fox said. "Then we would be back to the bill we had last year that created all those mandatory minimums," and that would still be bad news, he said.

Now is the time for people to mobilize, said Piper. "People need to call their members of Congress and say they oppose mandatory minimum sentencing. Unless their members are on the Judiciary Committee, it's probably too early to mention this bill, but the message we've been getting out is that we need to not overreact, we need to take things nice and slow. Congress needs to hear that it could make things far worse if it acts too quickly. They shouldn't be trying to fix the Supreme Court decisions in a few rushed sessions; they should be having hearings."

This bill is one onrushing locomotive that needs to be derailed, but for some reformers it's not that the train needs to be stopped but that the tracks need to be torn up.

For Nora Callahan, director of the November Coalition, a national group that highlights the stories and voices of people imprisoned under the drug laws, the Sensenbrenner bill represents the thrashing of a deeply wounded, but still dangerous, drug prohibition regime. "Before spirit leaves a living being and death replaces life, beast or not, a creature often groans in a monstrous way," she told DRCNet. "No one should assume that death of the drug war is near. I've seen what I thought was a dead dog come back to life, and people, too."

While some drug reformers are working the Hill to stop the Sensenbrenner bill, Callahan and the November Coalition are calling on others to join them in an August march on Washington as part of a coalition led by Alabama radio host Roberta Franklin, who has formed Friends and Family of Incarcerated People. While not specifically targeting this legislation, the Journey for Justice will call for an end to the mass imprisonment of Americans on drug charges.

"If we don't come to Washington DC on the morning of August 13th and support this genuine grassroots effort in a grand way, the beast won't be put down," said Callahan. "And this beast of a drug war needs putting down. It's nothing but misery."

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