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Monday, February 3, 2014

The Heritage Foundation Supports Scaling Back Mandatory Minimum Sentences

Douglas Berman of Sentencing Law and Policy posts that the Heritage Foundation is endorsing the Smarter Sentencing Act -- citing this recent blog post on the Foundation's website.

Berman notes that the Heritage Foundation is a notably conservative organization, and hopes that this organization's stance here, combined with some recent statements by notably conservative lawmakers, signals that sentencing reform may be possible.

Here is some of the relevant discussion from the Heritage Foundation's post:

Mandatory minimums were intended to address widely acknowledged problems with the criminal justice system. But good intentions don’t necessarily give rise to good results. In particular, some drug offenses, which make up a significant proportion of mandatory minimums, can give rise to unduly severe punishments. The difference between a drug quantity that triggers a mandatory minimum and one that does not will often produce a “cliff effect.” For example, someone with 0.9 grams of LSD might not spend much time incarcerated, but another fraction of a gram will result in a five years behind bars. It is difficult to conclude that the additional one-tenth of a gram demands a minimum sentence of five years’ imprisonment in every case, regardless of its facts. 
The Smarter Sentencing Act would allow judges to sentence nonviolent drug offenders below a mandatory minimum if the court finds that the defendant is not a serious offender (that is, the defendant has a limited or no criminal history, as defined by the U.S. Sentencing Guidelines, and no prior firearm, racketeering, terrorism, or sex offense convictions). The act would also make retroactive the Fairness in Sentencing Act of 2010, which prospectively reduced the disparity between the amount of crack cocaine and powder cocaine needed to trigger mandatory minimum sentences.
Berman remarks that this is a blog post and that he is not sure this represents the official view of the Foundation. Some more searching on my part led me to conclude that while the Foundation has not taken as explicit a stance on the issue of minimum sentencing, the blog post is certainly consistent with a lot of what they have written on criminal law.

For example, the most relevant report I was able to track down discussed the arguments for and against mandatory minimum sentences. While much of the report is presented in a balancing-of-arguments manner, the recommendations listed at the end make the Foundation's recent blog post less-surprising. Most relevantly is this recommendation:

Congress and the U.S. Sentencing Commission need to place a special emphasis on just deserts and proportionality when considering the use of mandatory minimum statutes. Perhaps a few lessons can be learned from the American Founding. The view of punishment during the Founding era, according to Professor Ronald J. Pestritto of Hillsdale College, “was a complex synthesis of the various approaches, where concerns for public safety and the reform of offenders proceeded from an understanding that punishment—appropriately applied—is inherently just and deserved.” While some criticize this approach as playing into public outrage expressed for certain crimes, “public anger represents a moral judgment and condemnation that is most accurately characterized as moral indignation.” Moral indignation is an appropriate response to inherently wrongful conduct carried out intentionally with knowledge that the act is unlawful or otherwise wrongful. While the utilitarian goal of lower crime through deterrence and incapacitation is worthwhile, lawmakers need to place special emphasis on the moral gravity of offenses in determining the proportionality of punishment. [Internal References Omitted]
The recommendation -- while not specific to drug offenses -- reflects the goals of the Smarter Sentencing Act. For example, this recommendation follows the report's remark that the 100-1 powder-to-crack cocaine sentencing ratio seems unfair -- with the report implying that the sentencing scheme would likely punish many users as though they were traffickers. Presumably, this would be a disproportionate condemnation.

The Heritage Foundation also calls for a reduction in scope of the federal criminal code -- highlighting testimony by their Senior Fellow, Edwin Meese, here.

I am not the biggest fan of politics, but when considering reforms or proposals, the political landscape is a reality that often cannot be ignored. With sentencing reform, liberals who seek major reforms would do well to research and adopt similar reforms that conservatives advocate. While different political parties may have different reasons for the policies they advocate, if those policies are substantially similar, politics should not get in the way.


I have revised the title of this post.

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