During a Senate Judiciary Committee hearing Wednesday morning, all four witnesses came from the conservative side of the aisle. And in the latest mark of a conservative turn-around on the “tough-on-crime” policies that were once synonymous with those on the political right, three of the four witnesses at the hearing vehemently supported reform to ease harsh mandatory minimum sentences that send low-level drug and other offenders to prison for years or decades.
The star witness, Sen. Rand Paul (R-KY), described mandatory minimum sentences as a “major culprit in our unbalanced and often unjust drug laws.” Paul has spoken out against policies fueled by the War on Drugs before, particularly criminal penalties for marijuana, and co-sponsored a bill to reform mandatory minimum sentences. But Wednesday, he spoke passionately about over-criminalization, invoking the analogy of racially discriminatory U.S. incarceration policies to “Jim Crow” made famous by law professor Michelle Alexander in her seminal book. “If I told you that one out of three African American males is forbidden by law from voting, you might think I was talking about Jim Crow 50 years ago,” Paul said. “One-out-of-three African-American males are forbidden from voting because of the War on Drugs.”
Turning to mandatory minimum sentences, he said, “The injustice of mandatory minimum sentences is impossible to ignore when you hear the stories of the victims.” Among the victims he cited were John Horner, who is spending 25 years in jail for selling his own pain pills, and Weldon Angelos, who was sentenced to 55 years for small-time marijuana and gun charges by a judge who lamented that the prison term he was forced by statute to impose was “unjust, cruel, and even irrational.”
Brett Tolman, a former federal prosecutor in Utah who previously worked for Sens. Orrin Hatch (R-UT) and Arlen Specter (R-PA) on the Judiciary Committee, said mandatory minimum sentences most frequently snag low-level offenders who are put on the front lines, often carrying large enough quantities of drugs to get a long sentence.
“Rather than focusing valuable resources on the highest levels of criminal conduct, the reality is that today’s federal system is all too often mired in the pursuit of low-level offenders who are too often over-punished by the federal government and who, a growing number believe, should otherwise be prosecuted by the states,” Tolman said. “More and more individuals, on both sides of the political aisle, are recognizing that many of these low-level offenders are being given extremely long sentences in federal prisons – sentences that too often do not match the gravity of the crimes committed.”
He submitted a letter into the record from fellow former prosecutors, judges, and DOJ officials, many of whom he described as “noted conservatives who were some of the most aggressive appointees when it came to pursuing crime.” Another group of former prosecutors and judges submitted a similar letter earlier this year.
Marc Levin, who leads a group of conservatives for criminal justice reform called Right on Crime, presented research from conservative think tanks on the high cost and low return of overly long sentences. Other recent unlikely allies in the call for mandatory minimum reform are the American Legislative Exchange Council, the corporate-backed group that once perpetuated model state legislation for tougher sentences, and the world’s largest association of correctional officers.
One hold-out has been the national association for district attorneys. Scott Burns, the executive director of the National District Attorneys Association, spoke on behalf of that group as the sole witness in opposition to mandatory minimum reform.
Several bipartisan bills to give judges discretion to sentence below a statutory minimum sentence are now pending in Congress, one co-sponsored by Paul and Senate Judiciary Chairman Patrick Leahy (D-VT) and another by Sens. Richard Durbin (D-IL) and Mike Lee (R-UT). In the House, Rep. Thomas Massie (R-KY) joined with Rep. Bobby Scott (D-VA) in sponsoring a bill.
Leahy cited this and other reforms to a criminal justice system that Attorney General Eric Holder called “broken” in remarks last month as the reason why he turned down a chairmanship on the Senate’s influential Appropriations Committee in favor of staying on the Judiciary Committee.
“One piece of the problem is the extensive use of mandatory minimum sentences,” Leahy said in his opening testimony. While Holder announced a policy last month to ease those sentences for some low-level offenders going forward, the sentencing regime will largely continue without a change to the law. “It is a problem that Congress created and that Congress must fix,” Leahy said.