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A System Sentencing Itself to Despair : Congress, Clinton must work fast to change sentencing law

April 25, 1993

Two more senior federal judges recently joined a growing list of their colleagues nationwide in refusing to preside over drug cases as a protest to the extreme and counterproductive sentences they are required to impose in these cases. We are sympathetic with their distress. Tough, inflexible federal sentencing rules, once considered "the answer" to rising drug use and crime, threaten to make a mockery of our federal criminal justice system.

In 1984, frustrated with mounting drug use and drug-related crime, Congress passed the Sentencing Reform Act, a sweeping and dramatic reform of federal sentencing aimed at reducing the disparity in sentences for the same crime from one judge to another and stiffening penalties for certain categories of serious offenses, including drug possession and sale. Congress created the U.S. Sentencing Commission to implement the act. Its seven members, appointed by the President, determine the sentences for each of the more than 2,000 federal offenses. At the same time, Congress eliminated parole; sentences had to be served.

Now, nearly 10 years later, study after study has documented the unintended consequences of these reforms. By far the most benign result is the cumbersome, unbending bureaucracy that now requires judges to consult volumes of rules and tables, which are amended frequently, to sentence convicted felons.

Far worse, however, are the effects of the rules themselves. Judges are bound to the mandatory guidelines, which impose often extreme sentences for even nonviolent drug possession. Depending on the type of drug and circumstances of the crime, a young offender convicted of first-time possession of $50 worth of drugs might be sentenced to a 20-year prison term or even a life term without the possibility of parole--and the judge generally cannot consider mitigating factors that long have been deemed relevant to a just sentence. Such prison terms go far beyond deterrence and defy logic.

Nearly 60% of all federal prisoners are now drug felons. Average prison terms for federal drug offenders have shot up 22% since 1986--while those of violent criminals fell by 30%--largely because of the mandatory sentencing rules. Is this the best use of scarce federal prison space?

And because law enforcement resources have been concentrated on the street drug trade in minority communities, drug arrests of minorities increased at 10 times the rate of increase of whites.

That's why U.S. District Judges Jack B. Weinstein and Whitman Knapp, both of New York, have had enough. The two senior judges will use their discretion to hear no more drug cases. And retired San Diego federal district Judge J. Lawrence Irving cited frustration with the mandatory guidelines to explain his resignation from the bench in late 1990.

Congress has been unwilling to amend the Draconian sentencing law for fear of seeming "soft on crime." But the protests of these respected judges, along with the private rumblings of hundreds more across the country, must signal Congress that the law is unfair and unworkable. And President Clinton should fill the two longstanding vacancies on the sentencing commission with individuals committed to reform. As a first step, the commission should eliminate the harsh mandatory minimum sentences for nonviolent drug offenses and restore a measure of discretion, compassion and common sense to the federal criminal justice system.

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