Once upon a time (last year), there was purportedly growing bipartisan consensus in Congress that mass incarceration needed to end. The resulting criminal justice reform legislation, however, ran into big trouble thanks to opposition from unreconstructed anti-crime warriors in the mold of Senator Tom Cotton, who says things like “it’s the victims of crime who will bear the costs of this dangerous experiment in criminal leniency.” So in classic Congressional fashion the bill is being deformed to attract more support.
The most recent iteration of the Senate legislation, unveiled last week, frees judges to deal more leniently with low-level offenders and decreases harsh federal mandatory minimum sentences for drug offenders. It would also bring retroactive relief to thousands imprisoned under the old and racially-disproportionate crack sentencing regime.But it creates new mandatory minimums as well, including a sentence enhancement in cases involving fentanyl, a dangerously powerful opioid that is increasingly mixed with or substituted for heroin. Measures to decrease certain harsh firearm penalties have been cut. And while mandatory minimum sentences for drug offenders will be lower, they are are still remarkably draconian.
(Update: It was widely reported, including by me, that the latest iteration of Senate criminal justice reform includes a new mandatory minimum for the powerful opioid fentanyl. It turns out that there is already a fentanyl mandatory minimum on the books, as this Drug Enforcement Administration chart makes clear. In addition, the proposed legislation would create not so much a mandatory minimum but a mandatory sentence enhancement of up to five years that would be added to whatever other drug sentence is handed down, according to Families Against Mandatory Minimums.)
“When first-time, nonviolent drug addicts...still get 15-year mandatory minimum sentences, we have to question how much reform is really being achieved,” Families Against Mandatory Minimums (FAMM) President Julie Stewart said in a statement that stopped short of either condemning or endorsing the bill. “The bill also takes some steps backward. It would now require courts to impose extra prison time for crimes involving fentanyl.”
“But long sentences have been a dismal failure at stopping drug crime and abuse,” Stewart continued. “Congress would do better to invest more money in treatment rather than spend it on locking people up longer for drug crimes.”
Sentencing Project Executive Director Marc Mauer criticized the bill but suggested that the positives outweighed the negatives, calling on Majority Leader Mitch McConnell “to bring the Sentencing Reform and Corrections Act to the Senate floor without delay, so that Congress can send a criminal justice reform measure to the President’s desk this year.”
There is rarely progress without compromise, and the bill is very likely better than the status quo. But the new sentence enhancement for fentanyl — as much as five years that will be stacked on top of others — is troubling, because it will put an unknown number of new offenders in prison for longer. Fentanyl now rivals heroin as a killer, and those caught dealing it are a growing priority for law enforcement. Already, the opioid crisis has caused politicians and prosecutors to revert to their most retrograde drug war instincts, even going so far as pursuing murder charges against dealers in fatal overdose cases. If prosecutors crack down even harder on fentanyl dealers, the new sentence enhancement could temper the bill’s decarcerating impact. By how much, we don’t know.
As criminal defense attorney and activist David Menschel tweeted in a series of comments on the bill: “I have no idea whether the new-new Sentencing Reform Bill in DC is ‘worth it.'" He continued: “I can't even get an analysis of what impact the changes to the bill would have, because no one really knows (cares?)…what is the overall anticipated carceral impact? We can't possibly know whether to support the bill without that, can we?”
The reform’s meagerness -- and, in the case of fentanyl, backwardness -- reflect the current movement for criminal justice reform's limits. While Black Lives Matter and the broader movement to end mass incarceration have scored notable victories, the sorry state of what now passes for reform in Congress is a reminder that they are still too weak to win big: Many politicians still fear the specter of Willie Horton more than they fear facing activists' wrath. What's more, the movement must contend with a formidable backlash animated by anti-crime hysterics from the law-and-order right, including the contrary-to-the-evidence scaremongering that protesting police and relaxing harsh sentences are raising or will raise the crime rate.
Meanwhile, Congress’s one step forward, one step back approach highlights the difficulty of dismantling a carceral state that continues to create new public enemies de jure, deserving of merciless punishment. The onward march toward marijuana legalization, for one, takes place even as the opioid crisis foments classic and failed law-and-order responses to users and sellers of heroin and fentanyl. As German Lopez writes at Vox, the measure “suggests at least some federal lawmakers have truly learned nothing from the failures of the war on drugs.”
Similarly, the removal of measures to decrease certain harsh federal sentences for those convicted of firearm offenses reflects the inherent shortcomings of emphasizing relief for nonviolent drug offenders: an estimated majority of prisoners in state prisons, where most prisoners are held, are locked up for violent crimes. That’s not true in the federal system, where roughly half are incarcerated for drugs. The federal legislation, of course, doesn’t address state prisoners. But it shows how emphasizing the plight of nonviolent offenders at the expense of the violent, while politically tempting, serves to perpetuate mass incarceration. Note the calls from Democratic officials and liberal gun control advocates for harsher mandatory minimums for illegal gun possession, which is another way to describe guns possessed by young black men.
I’m not pessimistic. This movement can win. Black Lives Matter has helped to oust top prosecutors in Chicago and Cleveland in March, and transformed the Democratic primary debate. The incarceration rate has declined in recent years. President Obama is speeding early releases for unjustly sentenced federal prisoners, though not speedily enough. Cities including New York, Philadelphia and New Orleans, have won big grants to make significant reductions in their jail populations. But the mess in Congress is a sobering reminder that piecemeal reform leaves too much undone. Mass incarceration is amongst the United States’ greatest injustices. It will require a truly enormous movement to shut it down.